Serge Ménard

[Combating Terrorism Act, September 21st, 2010]

Mr. Speaker, this is a bill that the legislators at the time, when they passed it, thought was dangerous. Our legislation respects individual freedoms and the fact that individuals must never be punished unless we are certain that they are guilty of a crime, and it ensures that the individual's fundamental rights are not intruded upon.

The legislators at the time thought that such an intrusion was possible. That is why they inserted a sunset clause so that the legislation would be reviewed in five years to see whether it was still warranted. To determine whether this was the case, the attorney general was asked to report on whether the legislation was justified, and why. In all of the reports that he submitted, the attorney general noted that the fact that these provisions were not used by the RCMP or federal prosecutors in the first five years and two months of their existence illustrates that officials were proceeding cautiously in using these powers. They did not use them. Not once did the RCMP or other federal prosecutors make use of this legislation.

Nevertheless, the attorney general added:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

Why is it necessary to maintain a tool that has never been used? I think that when this came back for review—in February 2007, if my memory serves me correctly—we made it clear that there was a risk that these laws could be used by a malevolent government to stigmatize political opponents. The leader of the Liberal Party at the time said that one of his reasons for not supporting the renewal, that is, for not allowing the provisions to stand, was that there was a risk of unfairly stigmatizing someone. And that stigma could seriously damage the person's life because he would be subject to a court ruling related to terrorism followed by a recognizance.

Do not forget that this recognizance and the proceedings require reasonable grounds, plausible suspicions, but suspicions of a serious offence. Consequently, if it is suspected that someone has potentially committed or may commit a serious offence, that person is then subject to a court ruling. How will this person's life be affected by having a court impose terrorism-related conditions? If these suspicions were unjustified, which could very easily happen since they are only suspicions, how can this person prove that the suspicions are unjustified and then overcome the stigma? I remember that that was the case with Maher Arar, who was flagged not in court, but in reports that were sent to another security service, that of the United States. How can this person be taken off the no-fly list? I am sure that someone who has been subject to a recognizance would be on this list. And since it is public, if his employer hears that he was subject to a recognizance, will he keep his job? Will another employer give him a job in the future?

In today's society, do people realize the serious harm that befalls someone who is labelled a terrorist, even based only on suspicions?

The proposed legislation before us today contains no provisions to ensure that someone falsely suspected can somehow get rid of that stigma. The absence of such a procedure would be enough in itself to justify not renewing the clause.

It is important to understand why this measure is more or less useless. When an individual suspected of being involved in a terrorist act is brought before a judge, the only thing the judge can do is impose conditions; the judge cannot incarcerate that individual. And if the individual agrees to sign the recognizance, the judge must release him.

For heaven's sake, in today's reality, how does a person become the object of such suspicions, which do not allow authorities to lay formal charges against that person? Suspicions probably arise when authorities learn about some of the person's relationships or as a result of electronic surveillance conducted in people's homes. But if those things clearly established the existence of a terrorist plot and that person's involvement, there would be evidence of a conspiracy. Conspiracy is a criminal offence, even if the objective of the conspiracy is never achieved. So that person could be charged with conspiracy and brought before a judge. The judge determines whether it is in the public's interest to incarcerate the individual, considering the evidence of conspiracy that is presented. That judge can incarcerate the individual, unlike a judge whose only recourse is to impose release conditions. The judge can even detain the individual.

Then what happens? The proceedings continue and either the charges are dropped and the person is acquitted, or the person is found guilty. If he is found guilty, then so much the better.

Nonetheless, we have to consider that not everyone who is acquitted owes that outcome to a savvy lawyer or insufficient evidence presented to the judge. In our society, I like to think that people are acquitted because they are not guilty. When a person is acquitted of a charge he can go on with his life. However, when a person is ordered by a judge to sign a recognizance on suspicion of terrorism, he is stigmatized for life.

Is this the kind of weapon we want to leave behind for a potentially dishonest government, particularly when it is the attorney general who authorizes the use of this procedure? I am not comforted by that thought.

Even if the government is not that dishonest, there are circumstances in which it is very difficult to respect the principles of the democratic state we have the privilege of living in. I experienced one such circumstance. As a young lawyer during the October crisis, I saw a government that I respected—despite the many accords it signed—invoke legislation that had been left on the books, namely the War Measures Act. And look what happened and how the War Measures Act was used.

Does anyone remember what kind of people were thrown in jail, kept there, and accused? A popular singer, Pauline Julien, and several poets—including Gaston Miron, I believe— were arrested, but most importantly, nearly all of the candidates in the Montreal municipal election were incarcerated under the War Measures Act.

Should another terrorist threat surface, I believe that future authorities could panic and use this law to, at the very least, stigmatize their rivals. A future government could even be dishonest. Our governments are reasonably honest, certainly more honest than most other governments in the world, and existing laws give them an incentive to remain so.

This is a violation of the legal principles that guide us. Let us not forget that these principles are what make our kind of government so much better than the kind of government or regime that terrorists typically seek to establish. We cannot stoop to their level and keep laws on our books that could be misused.

There are two main reasons why this legislation should not proceed. First, the measures it provides for are useless. It has never been used because it is useless. Second, it is dangerous. A government could easily be tempted to use it, not for its intended purpose but to stigmatize political rivals, which is often the case. For example, those who want stricter and stricter laws are happy to denounce those who stand for fundamental legal principles and a different attitude toward crime. They are portrayed as being pro-crime. I have heard that many times from those in government now. I can certainly imagine them using these provisions under certain circumstances to taint the reputations of their adversaries by accusing them of involvement in terrorist activities.

I should also point out that, in its annual reports, the government was supposed to justify the usefulness of this law to date, but has never been able to. Does that record suggest that this law is useful? All the Attorney General had to say was this:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

I would like to know why he still thinks that this bill is useful and should be renewed.

I will point out to MPs not belonging to the Conservative Party that they agreed in 2007 not to extend these provisions.

There are still a number of reasons why this legislation should not be renewed. Not enough changes have been made, according to those who believe they are necessary. In particular, no effort has been made to add provisions to the legislation enabling an innocent person who has been subjected to wrongful suspicion and stigmatized by a recognizance required by judicial decision to re-establish his reputation, live an ordinary life and travel as freely as he did before the conditions were imposed.

Canada's international reputation is at stake. I repeat, in today's world, if we need to prevent a terrorist attack, we will be able to do so because of electronic eavesdropping, meetings or because we are informed that there is a conspiracy.

In that case, we can charge the person. Those who drafted this bill believe that signing a recognizance is less serious than having charges laid. It may be less serious in the short term, but I hope they understand that, in the long term, it is much more serious. A person who is wrongly accused will be acquitted and the stigma removed; however, a person who comes under suspicion unjustly has no way to remove the stigma that remains in the security agencies' reports.

Why has the legislator, the attorney general, who was presented with these arguments in 2007, not found a solution? Because he has made no effort to do so. That is laziness in addition to recklessness. He is accepting a law that, when initially passed, could be dangerous for individual rights. It is the type of law that terrorist organizations would like to see adopted across the globe. We are playing their game by drafting laws that grant such discretionary power. Therefore, this bill is useless and dangerous.

I will acknowledge that there are two amendments that would improve the legislation. First, there is the fact that police must show that other investigative methods have failed, and second, there is the right to have a lawyer of the person's choice present, as the member who spoke before me mentioned. But we still have the same fundamental problem: this law can destroy the reputation of someone who perhaps does not deserve it. There are only suspicions against a person, and no way of repairing the damage that has been done.

As was the case with the War Measures Act, there could be situations that we have not foreseen. When the War Measures Act was passed, a government could have been tempted, or even gone as far as to use this legislation simply to destroy the reputation of political adversaries and to place them in a difficult position.

I am referring to the election that was held the year after the War Measures Act was used and almost all those who ran against Mayor Drapeau were incarcerated. Obviously, Mayor Drapeau won this election by a landslide, by getting all of the councillors from his party elected. He made a historic statement to the effect that this was his kind of victory. There were many other reasons to vote for Jean Drapeau rather than his opponents at the time.

Thus, a law that goes against our general principles, and goes so far as to incarcerate political opponents, has already been used once in our history. What is to say that one day, this legislation will not be used to stigmatize and destroy the reputation of political opponents? Not to mention the fact that errors can be made in good faith. Someone can be wrongly—but in good faith—suspected of being a terrorist and be subject to these provisions, but if the suspicions turn out to be untrue, no one is able to correct that injustice.

[Combating Terrorism Act, September 21st, 2010]

Mr. Speaker, I would like to ask the member who spoke whether he knows and understands why the Minister of Justice wants this provision to provide for preventive arrest and recognizance with conditions. Can the member tell us and comment on that?

[Young Offenders, June 17th, 2010]

Mr. Speaker, the National Assembly of Quebec, the Commission des droits de la personne et des droits de la jeunesse, the Association québécoise Plaidoyer-Victimes, the Barreau du Québec, youth centres, the Regroupement des organismes de justice alternative du Québec and many other organizations all condemn the Conservative government's young offenders bill.

Will the government amend its bill to comply with Quebec's rehabilitation model, an approach that for 25 years has given Quebec the lowest youth crime rate in Canada and one of the lowest in North America?

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, I know my limitations and that question goes beyond my area of expertise. My impression is that the timeframe is that short for technological reasons. I am hoping that they will explain in committee what happens when someone has seen a website with child pornography and has informed the organization. What happens next? I hope that the child pornography will be taken down immediately.

However, the timeframe seems reasonable to me if it is in order to come to a conclusion about the nature of the site. It could even be longer than 21 days. If this organization is inundated with reports at the beginning, it will require an efficiency that is often lacking in government organizations.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, that would probably be a good idea, but I honestly will not suggest it. I do not want to slow down the adoption of this legislation by suggesting another amendment. This is only the beginning, but it is a good start. It is giving the public access to an organization that will deal with online child pornography. I hope that it will make this material disappear.

It would be a lot of work to add obligatory child education. If we think about how long it took to craft this little egg, an amendment like that would be like crafting a bull. However, it would be a good idea to do it.

I have a beautiful bookmark with a painting by Marc-Aurèle Fortin that I would like to give to my colleague so that he can remember the name of my riding.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Marc-Aurèle Fortin.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, this bill does not cover offences related to manufacturing pornographic material or making this material available to the public. Clauses 3, 4, 5 and 6 address the possibility of reporting such material, and also the Internet service provider's obligation to preserve this material and destroy it at a later date. Child pornography should be prohibited via other provisions in the Criminal Code, and those are the provisions that would apply if the source of the Internet child pornography were discovered.

I think that the sentences provided for in clauses 3, 4, 5 and 6 are sufficient for the crime in question. Nowhere do we see the crime of putting child pornography on the Internet. We are simply forcing people to alert the organization in question when they notice that child pornography is available. The organization will probably ensure that the child pornography is removed from its site.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, with all due respect to the member who just spoke, I think that this is a good start, but it is just a start. There will have to be some follow-up. This is a good start because it does let people know that if they see child pornography on the Internet, they can do something, but the bill does not say that they must. That is not a bad thing to say. People who do not know who to tell, perhaps because they cannot find the information, will naturally tell the police.

There have been good results in a number of provinces with the co-operation of people who have come across sites belonging to kids who are obsessed with weapons or who are talking about murdering people or things like that. The person who was involved in the incident at Loyola College had a site like that. After that happened, of course a lot of people noticed certain sites and reported them to the Sûreté du Québec, which then went to those places and seized people's weapons.

At least this lets people collaborate, and that is a good start that we should not hold up.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, all our speeches on this bill can be summed up in one word: finally. Finally, the government has taken action on an issue that was easy to act on. It could have done something much sooner, when it knew it had the unanimous agreement of the House, but it did nothing for four years.

The government started by introducing a bill that died on the order paper. It reintroduced the legislation in the first session, but the bill could not move forward because of the prorogation. We would have thought the government could have introduced a bill that could pass easily, seeing as how it is so important.

I do not think I will ever head a minority government, but I would like to humbly make a suggestion in case there is another minority government. It seems to me that one of the first things a minority government should do is get down to work on legislation, introduce bills that have broad support and start accomplishing things. That is not what this government did. It leaves things until the end.

It is funny, because on the morning the government introduced this bill, I happened to be talking to a legal counsel for a large police force. He asked me what we were doing with Bills C-43 and C-48. One of those bills was replaced with the one that is before us. Finally, this government has done something.

Obviously, this bill will have to be studied in committee. Since it is short, I took the time to read it before coming into the House. I have said in the past that I hate the way federal bills are written, but we cannot change tradition. They seem to be deliberately written so that most people cannot understand them at all. That way, the federal government can always claim the law says something and spark a political debate that the average person who wants to keep informed cannot follow. I have always said, and I still believe, that poorly written laws are first misunderstood and then poorly applied. I get the feeling that that will be the case with this legislation unless we make it a bit clearer.

Basically, the bill is good and that is why we will vote in favour of it. However, that is also why we want to make it clearer, so that the people who can take action realize what we want them to do. When an Internet provider receives an indication that someone is accessing child pornography through the service provided, the provider should be able to seek out that material and remove it. Basically, that is what we want. Everyone agrees that this is a good principle. We are very accommodating in terms of freedom of expression and freedom of publication. There are limits, however, and child pornography is one of them. These limits need to be enforced in this extraordinary new medium, the Internet.

Clause 3 states:

If a person is advised, in the course of providing an Internet service to the public, of an Internet Protocol address or a Uniform Resource Locator where child pornography may be available to the public, the person must report that address or Uniform Resource Locator to the organization designated by the regulations, as soon as feasible and in accordance with the regulations.

This assumes that the person is advised. There is no question of that in the bill. Clearly, this means that if someone from the public informs the provider that there is child pornography on its server, that person is obligated to do something. That person must inform the organization that will be created. This will slow down the enforcement of the act. At the rate this government moves, I have a feeling that the organization will not be ready even by the time my granddaughters—beautiful twin girls whose first birthday is next week—are old enough to use the Internet. I really hope it will be created, because I do not ever want them to see child pornography on the Internet. I am more worried about the old men who look for such images.

I just do not have faith in this government. Whenever it spots consensus on something urgent, it chooses to wait until the end of the session, then tries to rush everything through. If I have time, I will talk about one urgent situation people are dealing with now.

I will now read clause 4:

If a person who provides an Internet service to the public has reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence, the person must notify an officer, constable or other person employed for the preservation and maintenance of the public peace of that fact, as soon as feasible and in accordance with the regulations.

As I understand it, this is about the server, the person providing Internet service to the public. I would have thought that person should notify the new organization. When someone notifies an Internet provider that child pornography is available on its server, the address must be provided to the organization designated in the regulations.

Suppose that instead of doing that, the person complied with clause 4 and provided the information to a police officer. The police officer would find the address or organization in question to which the problem should be referred to remove the child pornography from the Internet. We all agree on that point.

There must be some details about computers that I do not understand. Clause 5(1) reads as follows:

A person who makes a notification under section 4 [the server that notified the police officer] must preserve all computer data related to the notification that is in their possession or control for 21 days after the day on which the notification is made.

The person has to preserve the data. If that person is smart enough, he or she will not allow public access to the data, but the data must be preserved because the police will need them to conduct an investigation.

Clause 5(2) reads as follows:

The person must destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under subsection (1) as soon as feasible after the expiry of the 21-day period, unless the person is required to preserve the computer data by a judicial order made under any other Act of Parliament or the legislature of a province.

The intent is that this person will remove the data and that it will no longer be available on the server. We also want the regulatory body to verify if it is child pornography. Action must be taken quickly. You have to be an optimist to believe that a new organization will act swiftly. This body has not yet been created. A number of organizations have been created and they are not working as quickly as we had hoped.

Suppose that action is taken quickly and that it is child pornography. It will be taken off the site. Perhaps they will search for the person who put the pornography on the site, who committed the offence.

That is the end of it. The person does not keep the data. That worries me. I understand that they should not put it back on the server and that it should be removed immediately. Nevertheless, this is rather inconsequential to our approval.

Some things really intrigue me. The member for Brome—Missisquoi spoke about clause 7, which reads: “Nothing in this Act requires or authorizes a person to seek out child pornography.” In other words, we do not want anyone to feel obligated to report child pornography or to look for it. We are not obligating everyone to do so. However, people are being encouraged to report child pornography to an organization that will ensure that it is removed from the site.

These sections are fine. The same goes for clause 8, which protects a person who makes a report against civil suits. It is obvious that a person who reports child pornography should not be threatened with civil or criminal proceedings because of their report.

Now for clause 9: “For greater certainty, nothing in this Act affects any right of a person to be protected against self-incrimination.”

For those who do not know what self-incrimination is, here it means when an individual testifies and is required to provide relevant information that could incriminate them, we want them to feel free to tell the truth and request protection against self-incrimination.

In this case, I do not really see under what circumstance there might be any self-incrimination. The person making the report might say that they visited a site but did not pay for it. I do not see what protection they would need, but it is good to give them that protection just in case because we want to encourage them to report the site.

This protection against self-incrimination has existed for a long time in English law, including criminal law. I have never understood this odd mechanism whereby we ask a question of an individual who refuses to answer it because the answer might incriminate them. They are then told that they are required to tell the truth but that they will receive protection by virtue of objecting. That means their testimony cannot be used against them.

This mechanism becomes quite complicated during a trial, especially if it concerns any criminal activity. Shortcuts have been taken and have become commonplace. I am sure people are familiar with the phrases “to seek court protection” or “to seek protection from the law”. When a person seeks and is granted court protection and is prepared to tell the truth, but is aware that their testimony could incriminate them, they would like their testimony not to be used later to incriminate them. In this case, this always takes place during the cross-examination.

Protection against self-incrimination consists in not answering questions, but here we are asking someone to report something on their own initiative. I agree that if a person says they used a credit card to pay for a certain site, that the person should be protected because they are serving the public good by allowing the site to be removed.

Clause 9 represents a very good intention that should be better explained. We should find a more modern way to ensure this right, which has always been expressed in such a complicated manner. My explanation is no exception.

Offences are created. Here again, we really need an explanation. We understand that the law has already been amended to make putting child pornography on the Internet a crime, which we agree with. In any case, if it is not one, it would have been a good opportunity to say so here and it is still a good opportunity to say so now.

Clause 11 states: “Every person who knowingly contravenes any of sections 3 to 6 is guilty of an offence and liable on...conviction—”

But how can someone contravene that? The person is not obligated to notify their Internet provider, but if they do, I do not see what infraction they could have committed under clause 3. Maybe the fact that they did not communicate the address as quickly as they could have could be seen as a contravention.

Essentially, these clauses encourage good citizens to get child pornography websites taken off the Internet.

Since our time is limited and we are at the end of a session, the Bloc Québécois is willing to give its consent to this, just as it was ready to support a number of causes presented by the justice minister. However, we are against some of them. If he wanted to, he could easily understand why we are in favour of some of them and against others. I think that he needs to understand some principles and forget the propaganda.

We are in favour of legislation that will reduce crime. We are in favour of measures that help find and convict criminals. We are not for criminals' rights. The rights exercised in court do not belong exclusively to criminals. They are rights that belong to everyone, should we ever be unjustly charged.

But here, the methods used are based on one philosophy only, fear of punishment.

We are convinced, and my professional experience tells me, that the fear of punishment is not a deterrent for criminals. Heaven knows my law practice has been diverse. I was the one who helped create the Carcajou squad with Mr. Duchesneau and Mr. Barbeau. Policing principles are what produced the most results in the fight against organized crime. I do not want to be seen as someone who lobbies for criminals. However, I am a lawyer and I think it is important that laws be fair and that we avoid the dangers that our neighbours to the south have fallen into.

If the fear of punishment were a deterrent, the United States would have the lowest crime rate in the world, because it has the highest incarceration rate. In the United States, officials were applying minimum sentences to everything, convinced that that would reduce crime, but it did not work. There are so many reasons to explain this, and it is understandable. First of all, regarding minimum sentences, I would be curious to conduct a little test and ask all hon. members how many minimum sentences there are in Canadian laws. There are 27. What is the minimum sentence, for instance, for committing a crime with a firearm? People probably do not know. They are not familiar with our laws.

If most of us do not know what they are, then what about the public? Moreover, the public does not know much about the people who commit crimes, especially the most serious crimes. It is not the most educated people who commit crimes. People who commit crimes do not do the math and tell themselves that if they commit a certain crime, they could go to prison because there is a minimum sentence and that they should commit another crime because it carries a shorter minimum sentence. Come on. Crime is opportunistic, and criminals' main concern is not getting caught.

As I said, it is important to look at how countries use incarceration. The United States is the grand champion, with an incarceration rate of 760 per 100,000. Russia is in second place, with 626 per 100,000. I have some other figures from a list of about 185 countries compiled by Kings College Oxford in England. In Australia, the rate is 129 per 100,000; in China, 119. I do not know whether these data are reliable. Canada has a rate of 116 per 100,000, which puts us ahead of Holland, with 100; France, with 96; Belgium, with 93; Switzerland, with 76; Sweden, with 74; and Japan, with 63.

We can see that there is no connection with the severity of sentences. Here in Canada, people are three times less likely to be the victim of a homicide than in the United States, and in Quebec, they are five times less likely.

We are against minimum sentences, because they do not work and they force judges to hand down sentences they consider unfair.

[Protecting Children from Online Sexual Exploitation Act, June 16th, 2010]

Mr. Speaker, I have at least one question for the member.

In listening to his speech, I imagine that he has read the bill and is prepared to have it examined in committee. I do not know how familiar he is with the Internet. I use my computer a lot, but I admit that I do not always understand the idea behind what needs to be done. I would like to know whether the member understood why, when individuals responsible for a server are alerted that there is child porn on websites on that server, they must preserve this material and then are required to destroy it? Did he understand what that means? I understand what it means, but I find it is not worded well. This would protect people against self-incrimination. As a lawyer, my understanding is that to be protected against self-incrimination, one must first refuse to respond.