Robert Goguen

[Justice, April 23rd, 2013]

Mr. Speaker, the member opposite has already had the opportunity to help us crack down on sexual offences against children, but unfortunately he voted against the Safe Streets and Communities Act.

We have raised the age of consent. We have cracked down on offenders. We have eliminated house arrest for serious offences. The delays that occurred happened under the previous Liberal government while it was in power.

We have a comprehensive justice agenda, and the opposition should get on board with it.

[Firearms Registry, April 22nd, 2013]

Mr. Speaker, Yvonne Jones, the Liberal candidate in Labrador, has said that she says “no” to the gun registry. It seems that a Liberal has accepted the common sense policy that targeting hunters, farmers and sport shooters does not prevent crime. However, I am concerned that this is typical Liberal double-talk.

When the new leader of the Liberal Party was looking for votes in rural Ontario, he said that the gun registry was a failure. However, mere hours later, in Quebec, he said, “I voted to keep the firearms registry...and if we had a vote tomorrow I would vote...to keep the long-gun registry”.

Unlike the Liberals who say one thing in rural Canada and another in Ottawa and Quebec, our Conservative Party will continue to stand up for law-abiding sport shooters, farmers and hunters.

[Combating Terrorism Act, March 28th, 2013]

Mr. Speaker, I would like to read a quote from the hon. member's colleague from Brome—Missisquoi. He said: “I am confused about what motivated the government to introduce Bill S-7”, and he continued, “because since 2007, nothing has happened in Canada. The country has not even been subject to terrorist attacks.” This was October 17, 2012.

Does the hon. member agree with his colleague from Brome—Missisquoi that there is no risk of future terrorist attacks on Canada, and with his assumption that the government and Parliament should not pass legislation that would provide the necessary tools that would be needed if such an attack were to occur?

[Combating Terrorism Act, March 28th, 2013]

Mr. Speaker, for reasons that should be plainly obvious, we will not discuss the details of plans, but I can assure the member that the Minister of Justice and the Minister of Public Safety, with all the territorial and provincial ministers, have discussed these matters at length. They have worked together to create a cohesive plan.

[Combating Terrorism Act, March 28th, 2013]

Mr. Speaker, I am pleased to take part in this debate and to speak in favour of Bill S-7, the combatting terrorism act.

The Standing Committee on Public Safety and National Security considered the bill and heard a variety of witnesses. It was a wide-ranging and rich debate with important considerations and contributions from the witnesses who appeared before the committee. Several themes have emerged in the course of the consideration of Bill S-7 that I would like to address in my remarks today. I will first speak to the nature of the Bill S-7 initiative.

First and foremost, Bill S-7 is targeted criminal law reform. A variety of issues outside the scope of the bill have been raised in connection with it. Bill S-7 cannot address all concerns that arise in the context of national security, nor is it designed to do so. The government is working on many fronts to address other national security issues, utilizing the best means suited to the goal, whether it is through programs, training or other legislative initiatives. Rather, Bill S-7 is designed to re-enact the investigative hearings and recognizance with conditions in the Criminal Code that expired in March 2007, with additional safeguards over those that existed in the original legislation.

The bill would also create new offences of leaving or attempting to leave Canada for the purpose of committing certain terrorist offences, would respond to recommendations made during the parliamentary review of the Anti-terrorism Act and includes further improvements to the Criminal Code, the Canada Evidence Act and the Security of Information Act.

The investigative hearing is designed to facilitate the gathering of information by a judge, which may be relevant to the investigation of past or future terrorist offences following an application made by a peace officer.

The recognizance with conditions would allow a peace officer to apply to a judge to have a person appear before the court for the judge to consider whether it is necessary to impose reasonable conditions on a person to prevent a terrorist activity. The burden would be on the state to meet the grounds to make an application and to satisfy the judge that conditions ought to be imposed on the person.

There has been a debate about whether these tools are indeed needed and there has been compelling testimony from various witnesses supporting their reinstatement. For example, Assistant Commissioner James Malizia of the RCMP national security criminal investigations program's protective policing branch spoke of the need for these measures to assist law enforcement, while noting that they would be approached with cautious restraint.

The committee had the benefit of hearing from Maureen Basnicki, a co-founder of the Canadian Coalition Against Terror. She disagreed with those who characterized the original introduction of the investigative hearing and recognizance provisions of 2001 as an example of legislators having hit the panic button after 9/11. Instead, she stated, “Far from being an overreaction to 9/11, these provisions were, in fact, a sober and responsible recognition of the danger posed by terrorism to the future of the international community”. As a result, she urged all members to have in mind the security of Canadians when considering and voting on Bill S-7.

As Ms. Basnicki put it:

Canada should not be removing reasonable tools for fighting terrorism while terrorists are busy sharpening their tools for use against Canadians and other innocent victims. While the provisions of Bill S-7 can always be revisited at a later date, the lives shattered by a future terrorist attack that may have been prevented cannot be reconstituted by any act of Parliament.

The bill also proposes the creation of new offences for leaving or attempting to leave Canada for the purpose of committing certain terrorist offences. These offences are specifically designed to prevent persons from leaving Canada in order to participate abroad in the activity of a terrorist group, for example, receiving training, or to commit certain other terrorist acts abroad.

These offences have received the support of certain witnesses. For example, Mr. Rob Alexander, a member of and spokesman for the Air India 182 Victims Families Association, asserted during the hearing that the proposed new offences are necessitated by the globalization of terrorism-related activities, given reports of persons leaving Canada to receive terrorist training abroad. He argued that these potential Canadian offenders may pose a potentially mortal threat and danger to members of the Canadian armed forces on duty abroad. In his view, these proposed offences would help minimize this dilemma.

The horrific nature of terrorism requires a proactive and preventive approach. These new offences would allow law enforcement to intervene at an early stage in the planning process to prevent terrorist acts from being carried out. The proposed new offences would send a strong deterrent message potentially to assist in mitigating the threat of terrorism and would provide an appropriate maximum penalty.

In the course of debates on Bill S-7, some have alleged that the bill fails to protect human rights. To the contrary, the bill contains numerous human rights safeguards. I think we can all agree that counterterrorism measures must protect security, while respecting human rights.

Consider, for example, the investigative hearings. Under the investigative hearing provisions, the court would be empowered to compel persons who are reasonably believed to have information about past or future terrorism offences to appear in court and provide information. Without a doubt, the government has gone to great lengths to ensure that witnesses would be protected during the hearing from unintended consequences.

First, the Attorney General must consent before the investigative hearing process could be initiated. This is an important procedural step consistent with other areas of the Criminal Code.

Second, a judge would have to agree that an investigative hearing is in fact warranted for it to be held. Bill S-7 proposes, in particular, that to make an order for gathering of information the judge must be satisfied that the Attorney General's consent was obtained and that there are reasonable grounds to believe that a terrorism offence has been or will be committed; certain information concerning the offence, or the location of a suspect, is likely to be obtained as a result of the order; and reasonable attempts have been made to obtain the information by other means.

Under the provisions in the previous iterations of the bill, the last safeguard only applied to future terrorism offences and not to past ones. This safeguard would now apply to both past and future terrorism offences to further ensure that investigative hearings are only used in appropriate circumstances.

As a third safeguard, I direct the members' attention to the fact that under the original 2001 legislation, there was the power to arrest a person without warrant in certain limited circumstances, such as when the person was about to abscond, in order to ensure his or her attendance before a judge. However, the original legislation was silent as to how long the period of detention could be after such an arrest. Bill S-7 would remedy this defect by stating that section 707 of the Criminal Code, which sets out the maximum period of time an arrested person can be detained at a criminal trial, would also apply to a person arrested to attend an investigative hearing. Section 707 allows the detention of a witness for up to a maximum of 90 days, with judicial review for the detentions within each 30-day period.

Fourth, as a fundamental principle of our legal system in this country, the person named in the investigative hearing order would have the right to retain and instruct counsel at any stage of the proceedings. It is important that we all recognize that there is also a robust prohibition built into the investigative hearing proposal against the state using information or evidence derived from the information against a person who testified. An obvious and a logical exception to this is for prosecutions related to allegations of perjury or giving of contradictory evidence by the investigative hearing witness. Of course, this is an exception that is warranted.

In 2004, the Supreme Court of Canada took note of this robust provision and rejected the argument that the investigative hearing violated an individual's right to silence and the right against self-incrimination. The court also extended the use and derivative use immunity procedural safeguards found in section 83.28 of the Criminal Code to extradition and deportation proceedings.

On this last point, members may be reminded that Bill S-7 would be read in the context of the judgment of the Supreme Court of Canada to ensure that protections built into this section for use and derivative use immunity would be extended to extradition or deportation hearings. In summary, Bill S-7 incorporates appropriate and balanced safeguards.

The issue of review and accountability also arose during the debate and discussion of the bill. Let there be no mistake; Bill S-7 contains multiple reporting, parliamentary review and sunset provisions. The bill requires that Parliament review the investigative hearing and recognizance with conditions provisions prior to the date they sunset. These measures would be subject to another sunset clause, which would result in their expiry after five years, unless they were renewed by parliamentary resolution.

The proposals in the bill also include, as was the case with the original legislation, annual reporting requirements by the federal government and the provinces on the use of these provisions.

However, Bill S-7 would strengthen the annual reporting requirements, because the annual report of the Attorney General and the public safety minister would include an additional requirement to provide an opinion supported by reasons on why the provision should remain in force. The accountability processes built into the bill are both extensive and robust.

To conclude, the measures proposed in the Bill S-7 are necessary, proportionate and balanced, and they are replete with safeguards. I urge all members to support and vote for the bill.

[Committees of the House, March 26th, 2013]

Mr. Speaker, as my hon. colleagues may know, the chair of the Standing Committee on Justice and Human Rights reported back to the House of Commons recommending that Bill C-273, an act to amend the Criminal Code (cyberbullying), not proceed further. Specifically, pursuant to Standing Order 97.1, the committee recommended to the House of Commons that it not proceed further with Bill C-273 on the basis that it is redundant, inconsistent with existing Criminal Code provisions and otherwise problematic.

I think we can all agree that the issues of cyberbullying and bullying affect many young Canadians. We are all too familiar with recent tragic cases. However, I think we can all agree that the issue requires a multi-pronged range of responses by all levels of government, schools and other institutions, and indeed by all Canadians. None of us should tolerate bullying. From this perspective, Bill C-273 has helped to draw attention to the issue, and for this I would like to recognize the member for Vancouver Centre for her efforts.

The committee had the opportunity to hear from a number of witnesses who are well versed in the bullying and cyberbullying problem. The vast majority of witnesses cautioned against the approach proposed by Bill C-273. They indicated, among other things, that an increased criminal law approach for the issue would not be effective, would predominantly target Canada's youth population, and might put a chill on the use of other appropriate Criminal Code offences in relation to bullying in some more serious cases. In short, Bill C-273 was not widely supported by the experts in the field. Perhaps to put it a little more strongly, Bill C-273 was rejected as an appropriate response by the majority of expert witnesses.

In addition to these policy objections, the government has also found Bill C-273 to be problematic from a purely technical perspective. The Criminal Code already prohibits cyberbullying through a number of existing provisions, such as criminal harassment, uttering threats and defamatory libel, to name a few.

Bill C-273 proposes amendments to some of these relevant sections, namely section 264, criminal harassment, and section 298, defamation, to clarify that they can be committed over the Internet or a computer system. However, these amendments raise many issues.

The proposed amendments are problematic and redundant because the criminal law generally does not distinguish between the means or mode used to commit a crime. For example, the offence of criminal harassment, which does not refer to the use of Internet, has already been judicially interpreted to apply to conduct created through the use of the Internet.

Bill C-273's approach to the cyber dimension of bullying is also problematic because it is incomplete. Specifically, the proposed approach is incomplete because it proposes to amend only two of several offences that could be charged in the context of cyberbullying. There are many other offences, such as offences of intimidation in section 423, uttering threats in section 264.1 and personation in section 403, that could apply to criminal cyberbullying behaviour but that were not included in Bill C-273.

There is a well-established rule of statutory interpretation that says to expressly include something in one section means that its exclusion in another must be intended. In other words, if we were to make explicit that the offences of defamation and criminal harassment can be committed through the use of Internet or a computer system and not make the same clarification in other relevant offences, then this could very well lead courts to interpret the exclusion of this specification in these other offences as being intentional, i.e., that these other offences cannot be committed through the use of Internet or a computer system. This would not be the intention of Parliament.

Taking the repercussions of this proposed amendment one step further, it could also have a similar effect on non-bullying-related offences such as fraud. This could have the effect of rendering the Criminal Code offences that do not specify that they can be committed via computers and Internet ineffective in the cyber context. This amendment would have far-reaching and unintended negative consequences.

Bill C-273 is also problematic because it proposes to use terminology that is inconsistent with existing Criminal Code terminology. For example, clause 1 proposes to amend section 264, criminal harassment, to add:

(2.1) For greater certainty, paragraphs (2)(b) and (d) apply in respect of conduct that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication.

However, the Criminal Code, in section 172.1, luring a child, already refers to new technologies as “by means of communication”, a term that is broadly defined by section 35 of the Interpretation Act. One of the advantages of this approach is that the phrase will not be overtaken by the evolution of technology and new modes of telecommunications, as would Bill C-273's proposed amendments.

Section 35 of the Interpretation Act defines telecommunications as “the emission, transmission or reception of signs, signals, writings, images, sounds, or intelligence of any nature by any wire, cable, radio, optical, or other electromagnetic or by any similar technical system.”

I agree that cyberbullying warrants responses by all levels of government, but the needed response is not necessarily criminal law reform. Consider, for example, the December 2012 report of the Senate Standing Committee on Human Rights, “Cyberbullying Hurts: Respect For Rights in the Digital Age”. The committee heard over 40 witnesses, from almost as many organizations, and made six recommendations, none of which called for criminal law reform in these areas.

I would also note, for example, Nova Scotia's 2011 report, “Respectful and Responsible Relationships: There's No App for That”, also did not recommend criminal law reform in this area.

For these reasons, I would urge the House to accept the recommendation of the Standing Committee on Justice and Human Rights to not further proceed with Bill C-273.

[CBC and Public Service Disclosure and Transparency Act, March 26th, 2013]

Mr. Speaker, I am pleased to have this opportunity to speak for a few minutes on the subject of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

I begin by thanking the member for Edmonton—St. Albert for his efforts to bring forward this issue. Bill C-461 promotes greater transparency and accountability, not only in relation to CBC but also in relation to the public service as a whole.

Overall, the government agrees with what Bill C-461 is trying to accomplish. The public has a right to access information from the CBC as it receives funding from the government. The public has a right to find out the salaries of the very highest paid individuals in government institutions. These are important things the public needs to know.

That being said, we have looked at Bill C-461 and we believe it requires certain modifications. Therefore, the government will propose amendments. These amendments will not hinder or detract from the main goal that Bill C-461 tries to achieve.

Before I describe these amendments the government will propose, I will begin by spending a bit of time describing for the House what Bill C-461 seeks to achieve. I will first focus on the part of Bill C-461 that relates to the CBC.

Currently the Access to Information Act only allows a requester to access records that deal with the general administration of the CBC. Only requests that deal with such records will be considered and processed by the CBC. As a result, any record that contains information that relates to the journalistic, creative or programming activities of the CBC are excluded from coverage by the Access to Information Act. This means that if the CBC receives an access request that involves any records containing information that is journalistic, creative or programming activities, these records are not even processed as the access regime simply does not apply to them.

Generally speaking, broad exclusions are undesirable in an access to information regime from the perspective of openness and transparency. The current exclusion for the CBC is a problem because it excludes too much information. It is unclear and it also raises problems of interpretation and of application. In fact, it led the Standing Committee on Access to Information, Privacy and Ethics to undertake a study of the CBC's application of the exclusion. It also led to a court dispute between CBC and the Information Commissioner. I will come back to this later. Bill C-461 proposes to replace this problematic exclusion with an exemption, which will be more beneficial to the access regime.

When I say that the current exclusion covers too much, the point I am trying to make is that not all of the CBC's journalistic, creative or programming records are so sensitive that they deserve to be excluded from coverage by the Access to Information Act. However, I am certainly not suggesting that these CBC records should automatically be disclosed to a requester. On the contrary, Bill C-461 proposes that the CBC can protect these records with an exemption that can be used at its discretion.

The exemption would contain an injury test specific to CBC. That injury test would allow the head of the CBC to decide to protect the information from disclosure if it was determined that disclosure would be prejudicial to the CBC' s journalistic, creative or programming independence.

These activities are at the core of the CBC's mandate as a broadcaster and it is recognize that disclosure of information about such activities may hamper the CBC's ability to function in such a competitive environment. The requirements to demonstrate harm to a category of activities in order to protect information from disclosure is the type of exercise that many government institutions already perform on a large number of federal government records in the course of responding to access requests.

There is a secondary benefit to the changes proposed by Bill C-461 with regards to the CBC. It will allow for a very important review of the role by the Information Commissioner, an independent officer of Parliament with the responsibility of overseeing the application of the Access to Information Act. Review by the Information Commissioner of CBC's records was the subject of the dispute I mentioned earlier. The exemption for records of the CBC that Bill C-461 proposes will make it crystal clear that the Information Commissioner can carry out her crucial oversight role in relation to the CBC.

I will speak now about an exclusion for confidential journalistic sources of the CBC. While I have spoken now about the problems caused by an overly broad exclusion, there is no doubt that an exclusion offers the highest level of protection for information. There are some limited and specific categories of information that should be covered by a targeted, well-defined exclusion.

With respect to Bill C-461, it is the government's belief that information that would reveal the identity of confidential journalistic sources should continue to be excluded from the act.

When we previously spoke about Bill C-461, we noted that the ability to protect the identify of confidential journalistic sources was a pillar of journalism. Individuals who are confidential sources of information are understandably nervous about being identified. If a broadcaster cannot offer them complete guarantee of anonymity, they will go to another broadcaster or journalist.

As Bill C-461 is currently drafted, it would not allow the CBC to provide its confidential journalistic sources with an ironclad guarantee of continued anonymity. This is because the proposed new exemption in Bill C-461 contains an injury test that can result in their identity being revealed if the test is not met and will allow the Information Commissioner to review documents that identify them.

The position that we are taking with regard to the confidential journalistic sources is consistent with the 2011 Federal Court of Appeal decision on this matter. The court considered the CBC's exclusion and concluded that for journalistic sources, the exclusion was absolute and the Information Commissioner could not examine such information.

Bill C-461, with the amendment proposed by the government, would essentially reflect the outcome of the decision of the Federal Court of Appeal. I will stress that both the CBC and the Information Commissioner expressed satisfaction with the outcome of that decision.

I will speak now about disclosure of information on officers or employees of government institutions.

The next area where Bill C-461 would seek to increase openness and accountability is with regard to the expenditures of public money. Bill C-461 would increase openness and accountability by requiring more disclosure on expenditures in two areas: one would be the reimbursement for work-related expenses received by public servants; and the other would be the exact amount received by the highest paid individuals in government institutions.

Let me start with the issue of exact salaries.

In the public sector, job classifications are accompanied by a salary range within which someone is paid. Where they specifically fall within that range depends upon a number of factors, including time spent in the position and performance reviews.

Until now, the only information regarding salaries that could be made available to an access requester was the salary ranges of individuals enquired about. This salary range, along with other disclosable information, was enough to give a requester a good idea of how much an individual was remunerated by the government. We believe that being able to obtain salary ranges for the majority of public servants pursuant to an access to information request is appropriate.

In 2006 the coverage of the Access to Information Act and Privacy Act was expanded to a number of crown corporations. This change was brought forward with the Federal Accountability Act. Information on parent crown corporations and their wholly owned subsidiaries is now accessible under the Access to Information Act and Privacy Act. As a result, the Access to Information Act and Privacy Act now include a number of government institutions whose employees and officials are much higher paid than the vast majority of civil servants. We support the idea put forward in Bill C-461, that the highest paid individuals in the public sphere should have their exact salaries disclosed.

However, we propose an amendment to permit the disclosure of the exact income of those individuals that exceeds the highest level of the deputy minister level. This is a more practical level to administer than pledging the threshold in the middle of the deputy minister classification as is currently in Bill C-461. It also better reflects the intention of disclosing the income of the very highest paid individuals.

This is a sensible amendment as it crystallizes the fundamental idea that if an individual, in the course of their employment, incurs an expense and is compensated for that expense by the government, then that information should no longer be treated as personal information. The more noted expenses, when they are paid back to the employee, will be known by all. It is important to be transparent because we want the government to be money wise and only spend money where it is necessary.

Both the provisions of Bill C-461 requesting exact salaries and reimbursement of expenses go toward furthering transparency in the mechanisms of government. Individuals and institutions that are trusted with the public purse should be able to demonstrate where and how money is being spent.

The government supports Bill C-461, with the amendments I have described, because it would go toward achieving the transparency and accountability sought.

[Response to the Supreme Court of Canada Decision in R. v. Tse Act, March 19th, 2013]

Mr. Speaker, when the constitutionality of legislation is reviewed, a very rigorous process is always used. This procedure has been in place for many years. It has been used by our government as well as the previous Liberal government.

I also note that a number of decisions have been brought before the courts, which ultimately recognized the constitutionality of our legislation. Thus, a rigorous process is in place. I will not speak to Bill C-30, because, as I said, we are not moving forward on that.

[Response to the Supreme Court of Canada Decision in R. v. Tse Act, March 19th, 2013]

No, Mr. Speaker.

[Response to the Supreme Court of Canada Decision in R. v. Tse Act, March 19th, 2013]

Mr. Speaker, resolving constitutional deficiencies sometimes takes longer than we would like. This time, we are convinced that we have resolved the issue identified in R. v. Tse.