Madam Speaker, as I begin my remarks, I want to say that I am just as curious as the last member who spoke in relation to the revocation of the do-not-call list framework in this bill. A summary is a written piece customarily found within the leaf of the bill in a statutory document like this. There is no reference to it in the summary, at least in any way that one could identify it. I may not be quite so accusatory, but I am just as curious. Perhaps we could get something on the record here in this debate from the government's side about that.
In any event, I am very supportive of the bill. Certainly, my party also is in principle and we are quite desirous that this bill move through second reading and go to committee. Having said that, this bill, as I pointed out earlier in a comment, is going to have some problems at committee on a technical basis. In my view, it should have. There are some brand new concepts. As everyone knows, when we try to legislate something new in a brand new field in our Canadian society, and this is a relatively brand new field, there are huge problems in codifying concepts and getting them written down in law. I think there will be huge problems with this and I have outlined a few that I would like to cover in my remarks here this afternoon.
I am just flying randomly here, but I do want to go to subsection 2(4) of the bill which, as I read it, is defective. It is absolutely not ready for prime time. There is a verb missing. It is not a full sentence. Subsection 2(4) of the bill stands alone and it just says:
An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
Somebody forgot to complete the sentence. That does not happen very often in a bill. I did not read the French version. That may contain some of the answer, but in the English version, this section is totally incomplete and needs to be fixed. There may be other sections in the bill that have the same problem.
I wanted to go through a similar list of things where I think special attention has to be paid. First, the definition of spam. Of course, the bill itself does not use the word spam. That might be a breach of somebody's copyright or something on their commercial product. Who knows? However, it does refer to the concept of a commercial electronic message. That is the commodity that is being restricted here. It is not messages; it is commercial electronic messages. It is okay to use whatever terms we want in a bill like this, but we are going to have to make sure that every commercial electronic message that is carried out there and is going to be subject to this restriction is legitimately restricted.
I am sure that the people who have drafted the bill have thought it through, but this is why we send things through Parliament. This is why we send it to committee. It is just to make sure that we have not gone too far and have not included things inadvertently that we really do not want to include.
The second thing I want to point out has to do with subsection 6(1). At the core of subsection 6(1), it attempts to restrict or regulate the unconsented electronic commercial message. I mentioned this earlier, but I do want to re-document it here in my remarks. It says:
No person shall send or cause or permit to be sent to an electronic address a commercial electronic message--
The place to which the message is being sent is an electronic address. It is not being sent to a person.
Just below that in the same section it says that commercial electronic messages cannot be sent unless “the person to whom the message is sent has consented to receiving it...”.
If the message is being sent to an address and not a person, how can there be a person to whom the message is sent? The message is being sent to an electronic address. Therefore, it is not clear who the person is who controls the giving or not giving of consent. A person, of course, can be a corporation. However, it is just not clear.
If someone is alleged to have broken this law, it is quite possible that the person will say that he or she did not send it to a person but to an electronic address. Nobody in the world could possibly know who is associated with that electronic address. The person might know or might not know. It might be the person registered to the email address but we do not know. It is left unclear. I see this as a problem, not in trying to understand the clause, but in trying to prosecute or enforce the law.
The third thing I want to mention concerns the business of consent. The statute is worded in a way that says that a person cannot send a commercial electronic message to an address unless that non-defined person gives consent. If there is to be enforcement and if there is to be a prosecution, the difficulty I see right now is proving the non-consent. It is easy in court to prove consent but it is more difficult non-consent because one must potentially prove a negative. I am not sure the courts are ready for this. Some prosecutors out there may have said, yes, that they can handle this, that they can prove a negative, but I know how difficult it is to prove a negative. As I read this, any prosecution would need to involve evidence of non-consent, which means proving that negative.
In the initial instance, the message is not from a person but from an electronic address and electronic addresses do not have personal identities. They cannot talk, they cannot communicate and they cannot give an address. It is not clear which person is the person empowered to give or withhold consent.
I see some members in the House are dozing off as I walk through this conundrum, but this is something the committee will need to deal with. I know, Mr. Speaker, you are listening intently and that you have question marks in there too.
I have suggested that it is tough to prove a negative, and we all know it is, but it is a very tough thing to prove in a courtroom.
On the next issue concerning defining what a commercial electronic message is, it refers to a message that has a commercial character. It does not go much deeper than that. Many different types of messages are out there, billions of messages moving around the globe, and if there is to be enforcement, the trick will be trying to figure out which have the commercial character. Some spams will be clearly commercial but some spam will not. Some messaging will be clearly not commercial but personal, and then there is the other stuff that falls right in the middle, a little bit of both, and that will be extremely difficult, in view of our charter and the way courts will handle quasi-criminal prosecutions, to actually nail down what is commercial and what is not, and what is a little bit commercial and what is a little bit personal. This will be a problem but I will leave that there. It is a matter that I hope the committee will look at.
I want to mention clause 47 of the bill, which I will describe as brilliant. From my perspective, this is the best part of this bill because it purports to create a private right of enforcement. This would allow a person to make an application to a court where the person believes that he or she has been harmed in some way by this unauthorized, non-consented to, commercial electronic message, or some other offence described in the statute. By creating that, it frees up all of that enforcement mechanism that the state would otherwise need to create. It gives a citizen the ability to initiate something, go to court and get a response from the court without dragging all the federal or provincial prosecutors along.
Of course, that enforcement action would be freed up from a lot of the additional baggage that is sometimes imposed on our enforcement authorities by application of the charter. Sometimes in our system of governance, the charter, as interpreted by the courts, places obligations on governments to do or not do things as it enforces the law. Be that as it may, this creation of the private right of enforcement will allow the enforcement to be borne at the instance of an informed citizen, who has a grievance with respect to some of the things prohibited here, to take that to a court and, hopefully, get a fairly decent response.
I must say that, given the issues I raised earlier about definitions and procedures, a citizen might encounter the same kinds of problems in terms of definition and enforcement, but we all must acknowledge that this is a new area of law and we will need to deal with these new concepts and new definitions.
I am pleased to see the private right of enforcement. Who knows where it will all end up but so much of the electronic universe is taken up with individuals and individual initiatives. It is kind of like the wild west. When it comes to enforcement, the individual will become the enforcer. Who knows if some individual out there will actually go into the business of being the enforcer? “Show me your illegal spam and I will take it to court and get the judgment”. Some enterprising citizen out there is quite likely to take on that task. We may have created a new industry here with this private right of enforcement.
In terms of these points, I want to go to subclause 2(3) because I have a concern about it. This clause is part of the clause that describes what a commercial or electronic message is. For greater certainty, it states:
An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.
That means that a party that wishes to send a commercial message is not even allowed to ask for consent to send a commercial message. If I interpret that clause properly, an electronic message that contains a request for consent to send a message is also a commercial electronic message.
That, unfortunately, raises what I would call a catch 22. No one can send a message without getting consent and no one can send a message asking for consent because that would be a commercial message.
I have a feeling that might be a problem when it comes to the Charter of Rights and Freedoms. It might not be but if the government is firm on this, if the people who have drafted these laws have come to the conclusion that must be in the bill, then I suggest that the provision may need to be buttressed by some additional wording or with a preamble in the bill that would give some weight to defend against a charter-based challenge that would say that this is a catch 22 provision.
There would hardly ever be a commercial message again on the Internet because no one could even ask for consent. We need to be able to ask for consent, otherwise we would never be able to send a commercial message. It says pretty clearly that an electronic message that contains a request for consent is a commercial electronic message, which the statute prohibits.
I really would like to hear from some of the government members or from the parliamentary secretary, if not today, then later, as to why the do-not-call list provisions, clause 86, are now being prepared for revocation. I would not even mind knowing why it was kind of buried in the statute and not referred to in the summary. I am sure there is a reasonable explanation for that. The record will show the questions I have raised on these small, picky, but real issues.
I will just confirm that, notwithstanding all of these minor points that I have raised, there is a great deal of support for legislation of this nature and my party will support it to get it to committee.
