Paul MacKlin

[Committees of the House, February 24th, 2004]

Mr. Speaker, on February 19, 2004, the Standing Joint Committee for the Scrutiny of Regulations presented its first report. As is traditional, this report sets out the committee's order of reference and the criteria by which it conducts its reviews and fixes its quorum.

Now that members have had an opportunity to acquaint themselves with the report, I believe that if you should ask, you will find that there is unanimous consent to concur in the first report of the Standing Joint Committee for the Scrutiny of Regulations.

[Criminal Code, February 18th, 2004]

Mr. Speaker, it is a pleasure to have an opportunity to participate in the debate this afternoon regarding Bill C-12 and Motion No. 2 which would delete clause 7 of this particular bill.

With respect to the previous speaker, there is no question that we all share the concerns that the bill is intended to address. I do not think there is any doubt about that. We want to protect those most vulnerable within our society, and this is an excellent example of how we can do it.

The way in which the bill has been constructed and brought before the House is appropriate and there is no need for an amendment of the nature that is being brought forward.

Today, when I rise to speak to the bill, I do so in support of the bill itself and to oppose the motion to delete clause 7.

This bill is designed to deal with an amendment to the Criminal Code to protect our children and other vulnerable persons. It is a very broad bill. It also includes a provision to deal with the Canada Evidence Act and proposes a broad package of criminal law reforms that would seek to strengthen not only the criminal justice system in this particular instance, but in the broader instance as well.

The bill is not just a response to children and other vulnerable persons as defined in the limited discussion that has been going on here today. It will actually be broader than that and in particular with respect to bringing forward witnesses and those who would testify in trials.

One of the key elements of the bill is the strengthening of the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

It is very important that when we examine this concept that we look at what is trying to be accomplished here. What we are trying to do is avoid the situation that was described by the previous hon. member when he talked about the Sharpe case. This is important and it does need to be addressed. We are going forward with the bill to narrow that defence to one defence of public good.

The second key element is strengthening protection for young persons against sexual exploitation. There is a great tendency to simply look at issues of this nature as if the child or the young person was in fact the person who ought to have more restrictions placed upon them. What we are really trying to do is broaden the offence to those who would exploit, those who would take advantage of young persons. This is why the definition of sexual exploitation has been put in the bill.

We are also looking at increasing penalties for offences against children. Many times we hear that the ultimate penalties received are not significant enough. However I think that if we were to increase the penalties, it would give the courts much more room to address the issue of sentencing so that one does not necessarily have to go to the maximum on a first offence, which in almost all cases does not occur, but rather it is a graduated process of trying to use the appropriate sentence that fits the crime.

By increasing the sentencing provisions and penalties within the act, we would be allowing greater latitude for the courts. We will be giving that flexibility so they can be most severe with those who deserve the most severe penalty.

Another area in the bill would facilitate testimony by children and other vulnerable victims and witnesses. This is extremely important because when a victim goes through the actual act that is when the victim is created.

It is extremely difficult, then, for that victim to in effect go through explaining before all parties this victimization in a court. Therefore, we need to put in place appropriate measures to minimize this process, which would once again lead to further victimization. So within the bill, there is a process whereby testimony can be given in many forms and various protections and assistance can be brought forward for victims and also for witnesses to these crimes.

Lastly, the bill also deals with the concept of voyeurism. This criminal offence is an offence that is extremely important. Today it seemingly is more important with the advent of more and more electronic devices. In particular, we note that the latest cellphones have cameras attached to them and are able of course to take photographs and then transmit these particular photographs on the Internet. This form of voyeurism and the access it provides because of the very nature of the device is something that we must take very stringent action upon, and in this particular case it is part of the bill.

Child pornography is an issue that is regrettably not a new concern for all hon. members in the House. The sexual exploitation of children--again, society's most vulnerable group--in any form, including through child pornography, is to be condemned.

Bill C-12 recognizes this and proposes amendments to our existing child pornography provisions that will, I believe, serve to better protect children against this form of sexual exploitation. This motion seeks to delete two child pornography reforms proposed by Bill C-12. Bill C-12 proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill. I know that my hon. friend who spoke before me talked about this issue of public good, but clearly we have to be able to define in certain limited circumstances where in fact it is beneficial to society to have this defence, so that in fact in its simplest form it allows for the proper investigation and prosecution of those who would be participants in this business of pornography.

To say that in fact there should be absolutely no defence is simply not looking at this in a pragmatic way. Under the new law, no defence will be available where the material or act in question does not serve the public good or where it exceeds or goes beyond that which does serve the public good.

The public good defence recognizes that in some instances, such as with the possession of child pornography by police as part of an investigation, as I was just mentioning, such possession serves the public good and should be protected. It also recognizes that art or material that has artistic value can serve the public good but, and unlike the artistic merit defence, Bill C-12's proposed public good defence would not be available for such art where the risk of harm that it poses to society outweighs any potential benefit that it offers.

Canadians want more and better protection for our children against sexual exploitation through child pornography, not the same as or less than what we already have today. Given our ever growing understanding and knowledge of the nature and scope of the problem of child pornography in Canada and around the world, we must hold firm in our resolve, which resolve was unanimously reaffirmed as recently as last week, to take concrete and effective measures to better protect children against sexual exploitation through child pornography.

Accordingly, I do not support the motion and I urge all hon. members to support Bill C-12 as it was passed by the justice committee.

[Reinstatement of Government Bills, February 10th, 2004]

Mr. Speaker, it is a pleasure to have the opportunity to rise in the House today and address the motion to reinstate government bills.

I know there is a tendency to wander when we have the opportunity to address matters of this nature, especially when it is not in the interests, in particular, of the opposition to do so, and today is no exception.

Clearly, though, I think the Canadian public expects us to take seriously the matter before the House because a lot of time, effort and energy has been invested in the bills that the government wishes to reinstate in the House.

I think each and every one of us, if we were to look back at the history of the reinstatement process, would see that this process goes back some 30-plus years and, in fact, has precedent in this process where we have received unanimous consent in the previous times for reinstating bills that were advanced in the House in pre-prorogation periods.

The United Kingdom also carries on with a similar process. This process is quite normal and it should be respected in the House at this time.

We have come here with an obligation to serve the country and advance the cause and interests of this just society. I think that as we do so we need to take the time to properly address issues of this nature and go forward.

In this particular case it is clear that there are a number of bills that the government would like to bring forward. In particular, I would refer at this time to Bill C-20. I know that bill, which was brought forward in the House before, is part of a reform package to improve the protection of our children and other vulnerable persons. It responds to the commitments that were made in the 2002 Speech from the Throne. Quite frankly, I think these commitments continue today in the interest of advancing those protections.

We want to protect our children from exploitation in all of its forms. We want to reform the Criminal Code to increase penalties for abuse and neglect, and to provide more sensitive treatment for children who take part in justice proceedings as victims or as witnesses.

Bill C-20, as introduced in the previous session, is very important. These proposals build on some of the recent measures, that is measures that we had brought in before, in the interest of increasing the protection for children from sexual exploitation.

The previous reforms that we brought in included some criminal law reforms that created new offences to target criminals who use the Internet to lure and exploit children, or who transmit, make available, export or intentionally access child pornography.

The government has been consistent in its desire to better protect children. With the advent of new technologies, this has been a constant challenge for the law to stay up to and maintain the protection that we believe our children need.

Since the new technologies, including the Internet, are increasingly making the sexual exploitation of children a borderless crime, the government is also working closely with the international community in developing a strategy to include measures that will improve international co-operation, information sharing and techniques that will advance the prevention, health and public awareness, cooperation with the private sector and outreach to other countries with respect to issues of this nature.

We need to advance stronger child pornography provisions and Bill C-20, I submit, would certainly do that. The fact that the opposition is stalling today in order to stop the process of bringing forward this bill is somewhat distressing to those of us who seriously believe there is an opportunity to advance the protection of our children.

The existing defences for child pornography would, under this new bill, be reduced to a single defence of public good. A person would be found guilty of a child pornography offence when the material or act in question does not serve that public good, or where the risk of harm outweighs any public good that it would otherwise serve.

The proposed reforms would also expand the existing definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children. The current definition of child pornography only applies to material that advocates or counsels prohibited sexual activity with children. This is something that is important. It is meaningful and it should be advanced as quickly as possible in the House.

One other area in Bill C-20, which could be brought forward through the process of this motion, deals with the new category of sexual exploitation. The provision would provide new protection to young persons between 14 and 18 years of age. Under this proposed reform, courts would have to consider whether a relationship is exploitive, based upon its nature and circumstances, including any difference of age, the evolution of the relationship and the degree of control or influence exercised over the young person.

This new category focuses the court's determination on the conduct or behaviour of the accused rather than on the consent of the young person to sexual activity, again a very important advance that we believe ought to be brought forward as quickly as possible.

When we look at sentencing within the bill, we see that it proposes tougher sentencing provisions. Under the government's reform proposals, the penalties for offences that harm children would be increased. The maximum penalty for sexual exploitation, for example, would double from five years to ten. The maximum penalty for abandonment of a child or failure to provide the necessities of life to a child would more than double from two to five years. The abuse of a child in the commission of any Criminal Code offence would also have to be considered as an aggravating factor by the court and could result in a tougher sentence.

Clearly, members can see that these are very important points that need to be advanced for the protection of our children and other vulnerable persons. It is very important that we continue to bring forward these ideas, which I believe are important for the future of our children in this country.

There are other things that would also be met by allowing the reintroduction of Bill C-20. For example, when we talk about children and other vulnerable persons as witnesses within our courts, several reforms contained within the bill would help ensure that when they are participating in the criminal justice system, it would be less traumatic for them than it would otherwise be. First of all, it is very traumatic for someone to have gone through an experience of this nature, and it is even worse when they have to relive it in a courtroom setting. It is very important that we make provisions so that it is as easy and as least intimidating as possible. I think that although every time one enters a courtroom there is an element of intimidation, we should certainly try to minimize that for those who would be witnesses.

The current Criminal Code provisions would be expanded to allow all witnesses under age 18 to benefit from testimonial aids in any criminal proceeding, not just those involving sexual or other specified offences. These aids would include providing testimony from behind a screen or by closed circuit television, or having a support person accompany the young witness.

Current provisions generally require the Crown to establish the need for a testimonial aid. Given the potential trauma of the courtroom experience for young witnesses, the proposed reforms in Bill C-20 acknowledge the need for the aid. For all testimonial aids, the judge retains the discretion to deny the aid or protection where its use would interfere with the proper administration of justice. In addition, the facilities to permit the use of a screen or closed circuit TV must be available in the courtroom before the judge can permit their use.

Fundamental rights for the accused are fully respected under the proposed amendments. For example, the reforms would also allow children under 14 to give their evidence when they are able to understand and respond to questions. A competency hearing, which is currently mandatory, would no longer be required.

These are very important advances that would be very helpful in the administration of justice and are being held up by the failure of the House to approve the motion for reinstatement.

There are other areas, too, where in fact we talk about voyeurism. I think most of us are aware that with electronic advances today, voyeurism is becoming more and more of a problem. The latest evolution seems to be in the cellphone camera. It seems to be the latest intervention that is causing additional concern about voyeurism. I see that now notices are actually being posted at various establishments like the YMCA, for example, to the effect that one no longer can take a cellphone into a dressing room because of that particular characteristic of these more modern phones.

So it is something that is extremely important, this concept of voyeurism and making it an offence, and we have to deal with it. Bill C-20 is a bill that attempts to do this, and I believe it would do so in an appropriate manner. The rapid technological changes and developments of these years of course have brought many benefits to our society, but they raise all sorts of implications for such basic matters as our privacy. Web cameras, for example, which can transmit live images over the Internet, have raised concerns about their potential abuse, notably, of course, the secret viewing or recording of people for sexual purposes or where the viewing of a recording involves a serious breach of privacy.

The proposed offences listed in Bill C-20 would make it a crime in three specific cases to deliberately and secretly observe or record another person in circumstances where a reasonable expectation of privacy exists: first, when the observation or recording is done for a sexual purpose; second, when the person observed or recorded is in a place where one is reasonably expected to be in a state of nudity or engaged in sexual activity; and third, when the person observed is in a state of nudity or engaged in sexual activity and the purpose is to observe or record a person in such state of activity.

Distributing material knowing that it was produced through an offence of voyeurism would also be a crime. The maximum penalty for all voyeurism offences would be five years in prison. The copies for sale or distribution of a recording obtained through the commission of a voyeurism offence would be subject to seizure and forfeiture. The courts could also order the deletion of voyeuristic material from a computer system.

As members can see, these reforms clearly are quite important. The steps that we have taken so far to bring forward Bill C-20 in the previous pre-prorogation session, in fact, were very important and I think they were very positive steps in this regard. I think Canadians are concerned. They want solutions to these issues. That we are bringing forward solutions is extremely important. The fact that these solutions are being slowed up by this process of failure to cooperate and to work with the government in terms of bringing forward the existing bills that the government would like to reintroduce on this motion quite frankly is very troubling to me.

The time has come for the House to engage in the business that we were sent here to engage in and that is to advance the cause of the protection of our citizens. In this particular case, by reinstating Bill C-20 we would be advancing the cause of children and other vulnerable persons. It is extraordinarily important. I find that this process of delay for no reasoned purpose is very ineffective. Quite frankly, I think the Canadian people can see through this masquerade and they want us to proceed.

Accordingly, I would ask that the House support the reinstatement motion, bring it forward as soon as possible and have it pass in the House.

[Radiocommunication Act, February 9th, 2004]

Mr. Speaker, I rise to support Bill C-2, an act to amend the Radiocommunication Act. The problem of signal piracy is serious, and it is getting worse. It undermines the viability of the Canadian broadcasting system.

Many Canadian consumers who have bought unauthorized DTH, direct-to-home, equipment do not consider the consequences of their actions. They think they are getting television for free and perhaps they think that the broadcast industry can afford to lose a few dollars a month that these consumers might otherwise pay for their TV signal. However, the satellite television industry estimates that there could be from 500,00 up to 700,000 users of unauthorized DTH services in Canada. This means lost subscription revenues of about $400 million annually for the Canadian industry. This means of course lost jobs, lost ability to invest in innovation and a weaker Canadian broadcasting system in the face of very tough competition.

Simply put, we need to put an end to piracy, but the way to go about it is not to persecute and prosecute these individuals who are trying to cut corners by buying this pirated equipment. To be sure, their actions are illegal and unethical, but it would not be an efficient use of the police resources to go after “the little guy”. Instead, it makes more sense to go after the companies that are making the big profits by selling this illegal equipment. The bill does that by increasing the penalties for conviction and by enabling the victims of satellite piracy to obtain statutory fines from violators.

However, there is another way to deter signal piracy, and that is by making it much more difficult to obtain the hardware that is required to steal that satellite signal. The bill before us improves the import control to prevent illegal radio communication equipment from entering Canada. Both Star Choice and Bell ExpressVu, which are Canada's legitimate companies for satellite transmission, import DTH equipment from the United States for their legitimate customers, but the illegal DTH distributors import their equipment as well.

Under the current act, law enforcement can only seize illegal equipment after it has come across the border into Canada and has been distributed to the various unauthorized DTH dealers. That is something like trying to gather all the feathers together after a feather pillow has been ripped apart.

It is virtually impossible to find and seize all the illegal satellites and decoders once they have crossed the Canada-U.S. border. However, if we had a more effective import control, then we would be in a situation where the feather pillow does not get shredded and scattered to the wind. We know that much of this illegal equipment must cross the border and we have already in place an efficient and effective border control system under the Canada Border Services Agency. What we are really wishing to do through this bill is to give our border agents the power they need in order to stop this illegal activity.

Canada Customs and Revenue Agency has told us that it has difficulty implementing section 10(1)(b) of the current act. There is indeed a prohibition on the import of illegal satellite receivers, but it is difficult, as I am sure everyone will understand, for customs officials to establish if satellite receivers are being used for legal or illegal purposes. The section requires that customs must establish “a reasonable inference” that the decoding equipment, which is being imported, will be used for an illegal purpose.

The bill before us would prevent unauthorized radiocommunications equipment, including illegal satellite equipment, from entering Canada in the first place. The new provision prohibits the importation of satellite decoding equipment unless the importer has first obtained an import certificate issued by the Minister of Industry. Those who will be eligible for such an import certificate will include licensed Canadian satellite providers, such as Bell ExpressVu, Star Choice and their agents.

Import certificates will also be granted to foreign satellite service providers and manufacturers of decoding equipment who want to bring their equipment into Canada to have Canadian companies add value to the equipment before it is exported. Canadian companies will continue to excel in a recognized niche where our expertise and radiocommunications technology is recognized around the world.

Finally, import certificates will be available to Canadians who bring their satellite equipment with them when they return from vacations abroad. This is the case with many Canadians, of course, who spend their winter months south of the border and subscribe to an American satellite service while they are away. They often show up at the border with their dishes and satellite receivers in tow. These people will be able to bring their American television satellite receivers with them provided that they do not intend to use this equipment in Canada.

Individuals returning from abroad will be permitted to bring no more than one television satellite decoding system and they will not be permitted to use this equipment while they are in Canada.

By tightening up the border controls, by increasing the penalties for DTH piracy and by making available statutory damages in civil cases, the bill before us will help shut down the illegal practice that is undermining the broadcast industry in our country.

Our broadcasting system is built upon fair competition. The Radiocommunication Act serves as an integral part of the regulatory framework that governs broadcasting. When someone uses pirate technology to decode domestic and foreign satellite programming, the investments made by these broadcasters who play by the rules are devalued. They face unfair competition from companies that are not required to meet the commitments made to secure a licence from the CRTC. Unauthorized reception of satellite programming denies Canadian broadcasters, distributors, producers and artists millions of dollars each year.

The bill before us will help provide a framework whereby the satellite broadcasting companies can compete fairly with the other broadcasting distribution undertakings. They will be able to earn revenues they deserve from Canadians who use satellite as their preferred medium, and it will help put an end to the illegal and unethical activities on the part of consumers who cut corners by taking advantage of these pirated signals. Hopefully it will make it much more difficult for the unscrupulous businesses to profit from this illegal activity.

Accordingly, I urge all hon. members to join me in supporting the bill.

[Criminal Code, November 6th, 2003]

Mr. Speaker, the motion put forward today proposes to delete clause 7 of Bill C-20, which is an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

In essence the motion seeks to maintain the status quo on child pornography. Simply stated, the government does not accept the status quo and neither do Canadians.

Clause 7 of Bill C-20 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-20 proposes to narrow the two existing defences into one defence of public good, a term that is now specifically defined in the bill. Under the new law no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to society, then no defence would be available.

The motion to delete clause 7 does more than just seek to maintain the status quo; in fact it says the opposite of what Bill C-20 proposes. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children which descriptions are done for a sexual purpose are not child pornography and that they should not fall within the reach of the criminal law.

In the 2001 Sharpe case, the Supreme Court of Canada interpreted “for a sexual purpose” as being that which can be reasonably perceived as intended to cause sexual stimulation. With this interpretation in mind, it is difficult if not impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intended or intending to cause the reader to be sexually stimulated.

It is quite significant that our existing criminal law already clearly prohibits the sexual exploitation of children. The types of written material that this motion seeks to protect are those that portray or purport to portray children as a class of objects for sexual exploitation.

The government recognizes the very real risk of harm that such portrayal and objectification of children poses to our children and to society at large. That is why Bill C-20 proposes to include these types of materials within our definition of child pornography.

The second thing the motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit.

Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit no matter how small. For example, if the material in question is a written story, the question becomes, objectively viewed does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available irrespective of whether the risk of harm that the story poses to children and society outweighs any benefit that it offers.

The government does not agree with and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-20 accepting the government's amendment to define the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition closely models the language of the Supreme Court of Canada when it interpreted public good in the Sharpe case. Accordingly, the interpretation of Bill C-20 will be guided by the Supreme Court's judgment in this case.

A number of witnesses representing the arts community appeared before the justice committee on Bill C-20 to express concerns that their work or that of fellow artists would be criminalized by Bill C-20. I believe that their concerns are at the heart of this motion.

The justice committee's amendment of Bill C-20 to include a definition of the public good directly responds to those concerns expressed not only by the arts community but also to those expressed by child advocates appearing before the committee. They wanted greater clarity in the bill as to what constituted the public good. However, as to the balance of the concerns raised by the arts community witnesses, a number of observations or points in reply should be made.

The first question to be considered and answered in any potential child pornography case is the following: Does the work in question meet the Criminal Code's definition of child pornography? The written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-20's proposed new definition. That is, they could not be said to be works that one, were comprised primarily of descriptions of unlawful sexual activity with children and two, that such descriptions were written for a sexual purpose.

The second level of inquiry, and one which falls to the courts to determine, is if the material meets the definition of child pornography, is it protected by a defence? Under Bill C-20, as I have already outlined, there would only be one defence and its test would be a two step inquiry and yes, it is possible for art to meet such a two step inquiry.

Bill C-20 in its preamble clearly identifies the bill's objective. It states:

Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

The motion to delete clause 7 of Bill C-20 and to maintain the status quo for child pornography is not only incompatible with Bill C-20's objectives, it is antithetical.

I urge all hon. members to support Canada's children and to support Bill C-20 as passed by the justice committee and not to support this motion.

[Criminal Code, November 5th, 2003]

Mr. Speaker, I thank the hon. member for bringing forward and demonstrating his concern on an issue that concerns all of us. We certainly would like to do everything possible to deal with those who would drive impaired upon our roads.

However, with respect to the specific bill, I have to make certain comments. I understand that the member will maybe re-address the way in which he has approached this matter after my response to his speech.

First, the Criminal Code presently states that, absent evidence to the contrary, the blood alcohol concentration, or BAC as we are referring to it, at the time of driving equals the BAC from the breath test. The code creates a similar presumption relating to blood samples.

Bill C-452 would replace the current presumption but only for breath samples. The new wording would indicate that, absent evidence to the contrary, the BAC at the time of driving was not less than the BAC from the breath test. The presumption that the blood test result equals the BAC at the time of driving would be unchanged, which is inconsistent with the change that is proposed for a breath sample.

Currently, in order to obtain the presumption as it relates to a breath sample, the crown must prove that the first breath sample was taken within two hours of the demand for a breath sample. Bill C-452 would extend this time period to three hours.

Currently, in order to obtain the presumption as it relates to a blood sample, the crown must prove that the sample was taken within two hours of the demand for the blood sample. Inexplicably, Bill C-452 would not increase this time period to three hours in order to match the proposed increase in the time period for the presumption as it relates to breath samples.

Bill C-452 would impose a new and highly unusual requirement upon an accused person. In order to challenge the result of a breath or blood test, an accused would have to prove one of four things: first, the analysis was faulty; second, the equipment was faulty; third, the procedure was faulty; or, fourth, the accused drank alcohol after driving but before the testing. In weighing such a challenge, the bill would permit a court to consider the manner of driving, the behaviour or the result of a breath test or a blood test, including a breath test on an approved screening devise.

Under the charter, the crown must prove a criminal charge beyond a reasonable doubt. Once the crown leads certain evidence, legislation requiring an accused to raise a reasonable doubt is permissible. Bill C-452, however, goes too far because it would require the accused to go beyond raising a doubt and prove certain facts when the accused is challenging the accuracy of a breath or blood test result.

With respect to showing the equipment, procedure or analysis was faulty, I note that the police and prosecutors are in the best position to prove the equipment that was used was working properly. The accused is in no position to prove the contrary. Reversing the onus to the accused to prove these points is to relieve the crown of its burden to prove the charge beyond a reasonable doubt.

Even without this charter problem, I am surprised that the list from which an accused must prove a fact when challenging the accuracy of a breath or blood test result includes the fact of the accused's drinking after driving but before testing. Where there is credible evidence of such a fact, it goes to what the BAC was at the time of driving. It is evidence that rebuts the presumption that the result at the time of testing is the same as, or not less than, the BAC at the time of driving. Therefore the accused is not challenging the BAC at the time of testing at all.

The accused is simply saying that there is evidence to show that the BAC at the time of driving was not over the legal limit set out in the Criminal Code. It was only drinking after driving but before the test that put the accused over the legal limit by the time the test was taken. There is no challenge to the accuracy of the BAC result at the time of testing. It is just that it cannot be presumed to be the BAC at the time of driving.

Bill C-452 also says that in weighing the accused's evidence on a challenge to the test results, a court could consider the manner of driving and the accused's behaviour. While the manner of driving and the behaviour would be relevant to an impaired driving charge under section 253(a) , they are irrelevant to an “exceeds 80 milligrams percent” charge under section 253(b), for which the issue is straightforward: Was the accused's BAC “over 80” at the time of driving or not?

Bill C-452 has logical gaps when viewed in the light of the Criminal Code's presumption that relates to alcohol concentrations derived from blood samples. Even more problematic, in my view, is the bill's insistence upon changing the fundamental test for a criminal conviction. Where the accused challenges the accuracy of a test result, raising a reasonable doubt would no longer bring an acquittal. Bill C-452 would force the accused to prove a fact relating to equipment, operation and analysis of samples.

Although I started my speech today stating that the hon. member's goals were very laudable, and I commend him for that, I have pointed out a number of reasons why I think the way in which he has brought forward the bill is problematic. For those reasons, I am not able to support the proposed legislation.

[Criminal Code, November 3rd, 2003]

Mr. Speaker, this is only one aspect of what we have as a tool within the Criminal Code to deal with intimidation. However, the intimidation at which we are trying to direct ourselves here is the intimidation within the corporate structure.

There seemed to be a gap where we did not have any ways or means of properly prosecuting those who would intimidate. From an enforcement point of view it is extraordinarily important that we have this additional means of obtaining evidence for these cases. Without the evidence gathering this provides to us, some of the cases will not be prosecuted to the fullest extent that they would be in this case. We are protecting their jobs. We are protecting them from intimidation from their employer.

Respectfully, the hon. member may not be satisfied with that answer, but when we look at the United States situation where there was not whistleblower protection, people still came forward but they came forward at great personal risk. At least in this situation we are making certain that those people who come forward will not do so at their own economic peril. I think that is what the member was really driving at.

[Criminal Code, November 3rd, 2003]

Mr. Speaker, it is clear that the government is a responsible government. We have taken a number of approaches to that responsibility. We have a bill that has gone through the House dealing with ethics. It is now in the Senate.

Quite frankly, when we look at corporate market issues, we are taking the same approach. We are making corporations stand up and be accounted for, and be reliable in the eyes of the public. In fact, the security of the capital markets is there because in our longer economic term we need to ensure that our economic base is reliable, secure and does have the public confidence.

[Criminal Code, November 3rd, 2003]

Mr. Speaker, when we look at crime and punishment, it is always a question of trying to get the punishment to fit the crime.

I know that each and every member is caught up by the concept of market fraud and the effect on our country. Overall, it is an incredible problem. In effect, it can destroy our underlying economic fabric if it is not protected, if that integrity is not there, and if the public cannot rely upon that as being so.

In terms of looking at sentencing, not only are we sending in this particular bill a message about sentencing that is indicating how severe we view such activity, but we have learned from the United States experience that we had to do other things to gain the evidence that was necessary. In some cases, if we look at the history of prosecuting crimes of this nature, it has been very difficult to collect the evidence that was necessary and it has occasionally led to plea bargaining situations.

What we have initiated is something very special, in particular dealing with the whistleblowing concept. What we have done here is we have given the employees the protection. If they are prepared to go and meet with regulatory authorities or those who are in law enforcement to deal with this crime, and provide the proper evidence that is necessary, there will be a much more effective process in place to allow the evidence to be properly gathered. The evidence would then be brought properly before a judge to avoid the frequent concept of plea bargaining.

Therefore, sending the collective message of protecting those who will bring the evidence, getting that evidence before the courts and demanding from those courts--by suggesting that we view this type of activity as one that we will not accept--a high maximum fine or imprisonment, then, in fact, the message will get through.

It is vitally important for all Canadians that we make the message very clear that this type of activity of corporate market fraud will not be tolerated in this country.

[Criminal Code, November 3rd, 2003]

Mr. Speaker, Bill C-46 on capital markets fraud and evidence gathering has now been returned to us by the Standing Committee on Justice and Human Rights without amendment. I am happy to rise to speak to it on this third reading.

Members are well aware of the crisis in investor confidence in capital markets around the world that resulted from the recent major corporate scandals in the United States. Responding to this crisis has engaged governments at all levels and the stakeholders in those markets in Canada as well as in many other countries.

Bill C-46 addresses one aspect of that response: legislative measures to combat the criminal law dimension of market misconduct. It addresses the federal government's and Parliament's responsibility to ensure that police and prosecution authorities have effective legislative tools and the capacity to use those tools to deter and punish fraud and other criminal behaviour that threatens the integrity of our capital markets and investor confidence in those markets.

Bill C-46 is thus part of a package of enforcement measures that includes the creation of the RCMP led integrated market enforcement teams. As members have heard, these IMET units will focus the combined skills of investigators, lawyers, forensic accounting services and other disciplines on major cases of capital markets fraud. They would be located in our four major financial centres, Toronto, Vancouver, Montreal and Calgary and would add new, dedicated resources to the enforcement of fraud cases that threaten the national interest in the integrity of our capital markets.

Budget 2003 committed the funding required for this federal enforcement effort and also made commitments as to the accompanying elements of the legislative arm of this effort. Bill C-46 fulfilled that second commitment. Those elements comprised four separate areas: first, offences; second, sentencing; third, concurrent federal jurisdiction to prosecute; and fourth, enhanced evidence gathering tools.

Bill C-46 targets capital markets fraud with new offences and sentencing enhancements while at the same time enhancing generally the sentencing of fraud, which is a rapidly expanding and ever more damaging criminal problem, as well as facilitating evidence gathering in regard to all criminal offences.

In the wake of the scandals in the United States and the wide-ranging legislative measures taken in response to them at the federal level in the U.S., known as the Sarbanes-Oxley Act, the federal government conducted a thorough examination of the Criminal Code and consulted with federal and provincial enforcement authorities to see if our offences needed to be strengthened to deal with the same problem.

We found that the responsible authorities agreed that we already had strong and effective criminal laws to deal with capital markets fraud. Both police and prosecution authorities emphasized in particular that there was no need to add more specialized market fraud offences to the Criminal Code and that, rather, this indeed could be counterproductive.

The basic fraud offence in the code, section 380, is the offence most often used in capital markets fraud cases. It is comprehensive, well understood and thoroughly tested and interpreted by the courts. The existing market specific offences are in fact relatively rarely used, although the Criminal Code does have a panoply of such offences, including manipulation of stock market transactions, section 382, and filing a false prospectus, section 400. It also has strong offences covering obstruction of justice and other relevant criminal activity that could threaten the integrity of the capital markets.

Two specific gaps were identified. Bill C-46 addresses both of those gaps. The first of these involves improper insider trading. This misuse of personal advantage and responsibility strikes at the core of investor confidence.

It is already covered by all provincial securities legislation and by the Canada Business Corporations Act, but stakeholders strongly advise that a Criminal Code offence will add an additional and powerful weapon against this damaging activity that threatens the integrity of our capital markets. A criminal offence for serious cases of prohibited insider trading adds the social stigma of the criminal law and more severe penalties for this violation of public trust.

The offence that Bill C-46 will add to the Criminal Code in the proposed new section 382.1 is based on the model found most commonly in provincial securities legislation. It is fashioned to capture only that improper trading conduct that is currently prohibited by the legislation, but with the added mental element required for a Criminal Code offence and a criminal law level of penalty.

The other proposed new offence would seek to encourage employees to report unlawful conduct within their companies and cooperate with law enforcement by prohibiting employment related threats or retaliation against them for so doing.

U.S. and Canadian experience has shown that employees can play an important role in disclosing this conduct to the authorities. It was found that threats and actions aimed at such persons' employment are not adequately covered in the existing offences of intimidation or obstruction of justice. This targeted offence will close this gap. It will address the protection of what is often called whistleblowing in those circumstances where such a deterrent measure is appropriate for a Criminal Code offence, where the threatening or retaliatory action in employment situations is akin to intimidation or obstruction of justice. It will have a broad application to any appropriate case but will be particularly helpful to the enforcement of capital markets fraud cases.

The second component of Bill C-46 is the sentencing enhancements directed at fraud, and in particular, capital markets fraud. The bill will raise the maximum prison term for the primary fraud offence, that is, section 380, from 10 to 14 years. Fraud overall, as noted, is becoming an increasingly more serious criminal problem.

This will address both capital markets fraud and such pernicious fraud cases as major telemarketing frauds. It will also raise the maximum sentence for the market specific offence of fraudulent manipulation of stock exchange transactions from 5 to 10 years. I would note that a maximum term of imprisonment of 14 years, which the bill would apply to the offence most often used in capital markets fraud cases, section 380, is, next to the maximum term of life imprisonment, the highest maximum sentence in our criminal law. In addition, Bill C-46 will add certain aggravating and non-mitigating sentencing factors that will point judges to those cases of fraud that need greater denunciation and deterrence, whether they are cases of capital markets fraud or other major frauds that do great economic and social damage to our society.

Third, Bill C-46 will also give federal authorities a role in prosecuting these fraud cases in addition to the existing provincial prosecutorial role and responsibility in these cases.

This addition to the concurrent jurisdiction of the Attorney General of Canada to prosecute certain cases under the Criminal Code is an initiative that has been much misunderstood. It is not, for a start, a constitutional issue concerning the division of powers.

The authority of Parliament to confer such jurisdiction on federal prosecution authorities under the Criminal Code has been unequivocally confirmed by the Supreme Court of Canada, and Parliament has chosen to do so recently in certain criminal organization offences and all terrorism offences.

As in those cases, the new federal prosecutorial role in regard to capital markets fraud cases will respond to an immediate issue of great national concern.

Nevertheless, the definition of attorney general in section 2 of the Criminal Code reflects the traditional role of the provincial prosecuting authorities in dealing with the prosecution of most crime in their provinces. The federal government respects this traditional role.

The new federal prosecutorial role, created by Bill C-46 would, as noted, focus only on major cases of capital markets fraud that threaten the national interest and integrity of our crucial capital markets.

Moreover, this role would be both complementary and supplementary to the existing provincial prosecutorial role in these cases. The federal government would seek only to add its resources and expertise to help to ensure that these cases could be effectively prosecuted in all provinces.

All government in Canada currently face challenges to prosecutorial capacity. This initiative would help to address those challenges in regard to the national problem of capital markets fraud. To achieve this end, federal authorities have already had productive discussions with provincial prosecution authorities on the core principles of proposed prosecution protocols that would coordinate this partnership effort.

These proposed core principles would affirm the existing and primary role of the provinces in this area and would add federal resources only in a supplementary and a backstop role. These protocols would ensure that there is a coordinated and cooperative approach to the vigorous and effective prosecution of major cases of capital markets fraud.

The fourth and last component of Bill C-46 would facilitate evidence gathering. Federal and provincial law enforcement authorities have long argued for the need of additional production order powers to complement the existing investigative powers under the Criminal Code. Existing search warrant powers under the code allow police officers to search places for evidence, but this judicially authorized production order would add a power to require persons to produce existing relevant information, or to prepare and produce documents based on the existence of relevant information.

This requirement would be directed only at those third parties who are themselves not under investigation and would require the production to the police of relevant information, within a specified period of time, which is under their possession or control whether it is stored inside or outside of Canada.

Bill C-46 would create two levels of production order. First, the general production order would be available in the same circumstances in which a search warrant is now available, with all of the same constitutional and procedural safeguards. Second, the more narrowly targeted specific production order would provide a first step investigative tool. It would be placed on an appropriately lower criminal standard where there would be reasonable grounds to suspect that the information would assist in the investigation of an offence, but it would be limited to specific types of threshold information about which there is a relatively low expectation of privacy.

This would extend only to such general financial information concerning account holders as the name, address, account number, the date an account was opened and its active status. It would not, however, extend to such personal information as the transactions or amounts in those accounts.

While these production order powers would be available in regard to the enforcement of all criminal offences, they would be particularly helpful in the timely and effective gathering of financial information that is the core element in the investigation of capital markets fraud cases.

In conclusion, Bill C-46 has been welcomed and has received the solid overall endorsement of stakeholders in law enforcement, representatives of provincial security regulatory agencies, the securities industry, and from members from all sides of this House.

Together with the commitment of additional enforcement resources through the integrated market enforcement teams, this criminal law enforcement initiative would help to deter and punish fraudulent activity that threatens the integrity of the capital markets that are vital to Canadian economic life. It would help to ensure that those who engage in this socially and economically damaging criminal activity are detected, charged, convicted and appropriately punished.

I would urge all members of the House to support the passage of Bill C-46.