Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence
OTTAWA, Thursday, February 7, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15A, to amend the Criminal Code and to amend other Acts in consequence, met this day at 10:50 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before proceeding to clause-by-clause consideration of Bill C-15A, I shall read into the record a letter from the Minister of Justice. I shall read the English only, as the letter is currently with translation. I apologize that the copies are not before you.
The letter is addressed to the Honourable Lorna Milne, Chair of the Standing Senate Committee on Legal and Constitutional Affairs. It reads as follows:
Dear Senator:
Thank you for your letter of January 31, 2002, concerning the amendments to the postappellate conviction review process contained in Bill C-15A, which is currently before the Senate Standing Committee on Legal and Constitutional Affairs, and requesting that I comment on these amendments and elaborate as to the reasons why criminal conviction review should remain under the purview of the federal Minister of Justice.
The post-appellate conviction review process, commonly known as the section 690 Criminal Code conviction review process, allows persons who feel they have been wrongly convicted of an offence to apply to the federal Minister of Justice for a review of their case. The section 690 conviction review process is not part of the normal judicial process. It is an extraordinary remedy which exists to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted. Upon review of the application, the Minister of Justice may grant a remedy by referring appropriate cases back to the courts for a new trial or appeal.
The Minister of Justice currently receives approximately 50 to 70 requests for a conviction review each year. Practically speaking, the Minister of Justice is not in a position to review each application personally. Legal counsel review and investigate cases and provide legal advice to the Minister of Justice as to whether or not a remedy is appropriate. Currently, the Criminal Conviction Review Group within the Department of Justice Canada is responsible for the review of these applications. The group consists of counsel with experience as both crown and defence counsel. Counsel from outside the Department, including retired superior court judges, are also asked to review applications from time to time.
Section 690 of the Criminal Code, as it currently reads, is very vague, and that has been a major criticism of the conviction review process. For example, section 690 neither sets out a clear process for how an application is reviewed nor establishes criteria for when a remedy may be granted. As a result, principles were developed throughout the years to guide the use of this discretionary power. For example, Ministers of Justice have declined to review an application if the applicant has not exhausted his or her appellate rights. The section was not meant to be another level of appeal or a chance for the applicant to re-argue the case if he or she lost on appeal. Applicants must present new and significant information that either was not considered by the courts or arose after the conventional avenues of appeal were exhausted and that could reasonably be expected to have affected the verdict.
Other criticisms of the current system of conviction review are that it takes too long to complete the review of an application and that the process is too secretive. Some have called for the creation of an independent review body to review cases of alleged wrongful conviction in Canada, similar to the Criminal Cases Review Commission created about four years ago in the United Kingdom.
As a result of these calls for reform, my predecessor, the Honourable Anne McLellan, initiated a consultation process to examine ways in which the conviction review process could be improved in Canada. A consultation paper was released in October 1998. Submissions were received in response to the consultation paper. The issue of whether or not a formal independent body should be created in Canada to review alleged wrongful conviction cases was studied. In fact, during the consultation process, the then Minister of Justice, the Honourable Anne McLellan, met with officials from the British Criminal Cases Review Commission to discuss their system. In the end, it was concluded that a formal separate body was inappropriate in the Canadian context and that the ultimate decision-making authority in criminal conviction review should remain with the federal Minister of Justice, who is accountable to Parliament and the people of Canada. This recognizes and maintains the traditional jurisdiction of the courts while providing a fair and just remedy in those exceptional cases that have somehow fallen through the cracks while in the conventional justice system.
There are many reasons why it was concluded that a formal and separate body for conviction review was inappropriate in the Canadian context. The Canadian situation is different from the one that existed in the United Kingdom when it was felt that an independent review body was necessary. In the United Kingdom, the Home Secretary, who is responsible for policing and prisons, was also responsible for the review of cases of alleged wrongful conviction. As you may recall, many of the high-profile cases in the United Kingdom involved allegations of police misconduct. In Canada, such a conflict does not exist for the federal Minister of Justice because he or she is not responsible for policing or for the prison system. Furthermore, the vast majority of section 690 applications relate to purely criminal matters where the prosecution was conducted by one of the provincial Attorneys General.
Creating a formal separate body to review these applications will not necessarily lead to quicker reviews. The British Criminal Cases Review Commission found, even with its large staff and budget, that it did not have the capacity to deal with its caseload and minimize the backlog of cases on any reasonable time scale. According to its most recent annual report, the British Commission now receives funding in the amount of ƒ5.415 million a year and has a staff of over 80 persons. It receives approximately 1000 applications per year. As of October 31, 2001, the Commission had a backlog of 460 cases.
However, having concluded that a formal separate body for conviction review was not needed in Canada, the consultation process did lead to the conclusion that amendments were needed to improve the current conviction review process, by making it more open, accessible, and accountable. The amendments to the Criminal Code contained in Bill C-15A are designed to make those improvements.
Specifically, the proposed amendments clarify when someone is eligible to apply for a review. The person must have exhausted all rights of judicial review or appeal before qualifying for a review. It is now clear that the process is not an alternative to the judicial system. The proposed amendments allow for the creation of regulations that set out how one applies for a review and what information and documents are required to complete an application. This will assist applicants in completing their section 690 review applications, as the process will be made more accessible and easier to follow. The proposed amendments provide that the stages of the review process will be set out in regulations. This will make the entire review process more open and understandable and will alleviate the concern that the process is too secretive. Moreover, the factors that the Minister of Justice will use in determining whether or not an applicant may be entitled to a remedy are now clearly set out in the proposed amendments. By expressing these factors in the proposed amendments, the Minister of Justice will be more accountable in the review process.
In addition, the Minister of Justice would be required to submit annual reports to Parliament in relation to applications for conviction review. By requiring an annual report to be tabled, the Minister of Justice will be answerable for the review of applications.
Currently, section 690 limits the review to those who have been convicted in proceedings by indictment or who have been sentenced under the longterm or dangerous offender provisions of the Criminal Code. The proposed amendments allow for the review of summary conviction offences. The consultation process revealed strong support for the inclusion of alleged miscarriages of justice arising out of summary conviction cases. Although some concerns were raised about the minor nature of some summary conviction offences, a wrongful conviction for a summary offence is still capable of bringing the administration of justice into disrepute. Furthermore, the expansion of maximum penalties for certain summary offences adds merit to the call for an extra-judicial safety net for all alleged wrongful convictions.
A very important and needed amendment to the conviction review process is proposed in section 696.2. Currently, section 690 does not provide powers of investigation to those reviewing cases. Sometimes those persons investigating cases on behalf of the Minister are unable to obtain relevant information in order to properly review and investigate a case. For example, an important witness with relevant information as to whether or not there has been a miscarriage of justice may refuse to voluntarily provide information. Section 690 did not provide any powers to compel witness to give information or documents; therefore, there was no way that the needed information could be obtained if it could not be obtained voluntarily.
The proposed section 696.2(2) provides the Minister of Justice with the powers of a commissioner under Part I of the Inquiries Act. Proposed section 696.2(3) allows the Minister to delegate the exercise of his or her investigative powers to those investigating cases on behalf of the Minister. It must be remembered that the decision making power in conviction review cases still remains with the Minister of Justice. This section simply provides persons investigating cases on behalf of the Minister with the ability to obtain the necessary information in order to thoroughly review and investigate a case so that a full report may be made to the Minister as to whether or not a remedy is appropriate in that case.
The proposed section follows a specific recommendation made by the Donald Marshall Inquiry. The Inquiry specifically recommended that the powers to obtain documents and to compel witnesses to provide information was needed by those investigating and reviewing wrongful conviction cases.
At the same time as the legislative amendments were introduced, my predecessor, the Honourable Anne McLellan, announced that administrative changes would be made to the review unit, including the expansion of the unit to include investigators and the appointment of a Special Advisor to oversee the review of applications, and to assume responsibility for the review unit, and to report directly to the Minister, thereby adding a degree of independence from the Department of Justice Canada.
I am confident that these amendments are the most efficient and effective way to improve the postappellate conviction review process in Canada and that a formal separate body is not required.
Yours sincerely,
Martin Cauchon
This letter was dated February 6, 2002.
Honourable senators, we are meeting to proceed with clause-by-clause consideration of Bill C-15A. If any of the senators intended to make amendments, they may want to postpone making them until third reading in the house, in order to digest what the minister has said in this letter that we have before us.
Senator Joyal: Madam Chair, I appreciate the long letter of the Minister of Justice. It is helpful to give a background to the proposed section. I am pleased to have it on record.
As honourable colleagues will remember, we heard from representatives of the Canadian Bar Association, and a number of witnesses related to the exercise of the investigation powers of the minister as provided in proposed section 696.2, the proposed section the minister mentioned on page 4 of his letter. I have personally a preoccupation with that section, and I know that some of my colleagues share that preoccupation.
I had some concerns about subclause 696.2(3) on page 38 of the bill. I shall read that subclause.
Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any individual the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).
I repeat, he ``may delegate in writing to any individual...''
That seems to me to be very key to all of the investigation process. That person must offer independence and must offer a legal capacity. Those are the two criteria that that person should present in order that the investigation is led according to the objectivity that must be used to pronounce on the various steps of a trial that led to the condemnation of the sentenced person.
I thought of suggesting that instead of delegating to ``any individual,'' the minister could delegate to a retired justice, which of course guarantees knowledge and expertise of the legal process, because, of course, a justice has that kind of experience. Of course, the person would be a retired justice, no longer involved in the system; hence, there would no interest on his or her part to protect the system. As the dictum says, not only should justice be done, but justice should appear to be done. In other words, there is an element of additional integrity visàvis the system that the person must investigate.
Following discussions I had with various people within the department and outside, I would certainly maintain that the qualities of that person should be mentioned in that subclause. In other words, it should be a person who offers independence and legal background. Otherwise, it could be anyone. Anyone is anyone. Anyone could be someone who has no interest in the system, or it could be an individual who is part of the system, which I do not think is proper.
As I mentioned, not only must justice be done, it must appear to be done, and more in the case of a miscarriage of justice. In other words, the person who investigates must offer almost a prima facie quality of integrity and independence.
I am not ready at this point in time to offer you a specific wording on this. I am still trying to express it in legal terms that would be compatible with other aspects of that clause and with theCriminal Code. I would certainly express to my colleagues my concern and intention to move amendments on third reading after I have tested the wording with the legal experts of the Department of Justice.
We are not add odds with the department; we are trying to create the best system possible in the case of miscarriage of justice and move a proper amendment, an amendment that would render that quality of impartiality and, of course, legal background in a person who knows the system. A person must essentially investigate the system. That person cannot be anyone. We know that not anyone can do that.
My proposed amendment would leave the discretion to the Minister of Justice. I have no problem leaving the discretion with the Minister of Justice, provided that those qualifications are mentioned in the bill.
I would not be opposed to vote this morning, with the proviso that at third reading I would propose an amendment.
Senator Beaudoin: My question is one of procedure. I agree entirely with what has been said. Those who may have an amendment to propose may do it at third reading, but we must talk about it in the committee to a certain extent.
Senator Joyal: Of course.
Senator Beaudoin: We have some reservation about this question of delegation and the comparison between the British system and that which is proposed by the Minister of Justice. We cannot avoid a discussion of principles on this.
If there are one or two amendments, proposing them at third reading may be the best solution. However, it should be said very clearly that this will not set aside any discussion on the principle of the mechanism.
[Translation]
Senator Nolin: Thank you very much for taking the trouble to ask the minister to comment on the amendments to section 690 of the Criminal Code. I support Senator Joyal's approach. I, too, have a problem with sub-delegation, if it is not subject to sufficiently strict requirements. Should the review be conducted only by judges? The new British Commission is made up of not only judges; some members and staff have investigative power. The suggestion that we wait until third reading is in my view appropriate. I will abstain from voting on clauses 69 and 70, which have to do with the amendments.
[English]
The Chairman: That is clause 71.
Senator Nolin: There is also clause 69. We will have that debate at third reading in the chamber. We will have time to read the minister's letter. We do have a different system and regime. We live in a federation. Provincial authorities are in charge of implementing what we are adopting as criminal laws. Nevertheless, it is a privilege of the Crown when we hear justice after justice referring to a more independent and a more open process to review those cases, but we will have that discussion at third reading. I shall abstain from voting on those clauses.
Senator Joyal: Senator Nolin is absolutely right. I have the text of the Criminal Appeal Act of Great Britain. At Part II, section 8, regarding the Criminal Cases Review Commission, which has 11 members, as Senator Nolin indicated, section 8(5) reads as follows:
8(5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if —
(a) he has a ten year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, or
(b) he is a member of the Bar of Northern Ireland, or solicitor of the Supreme Court of Northern Ireland, of at least ten years' standing.
In other words, it is clear there has to be a legal capacity because the person is investigating the legal system.
The provision is silent on this. I should like to study further what should be said properly in the system so that at third reading we will have a real basis to propose an amendment.
Senator Grafstein: There are three issues for me. Senator Joyal raised the third issue, which is to be satisfied that the person who is given the responsibility to review is free of any implication in the existing system, is independent, and has the necessary skills to examine the system. We do have a number of horror stories now about unfair and undue convictions.
It raises three issues. First, with respect to a clear and independent review, we have seen some examples. I shall not go through it. The testimony in part covered this. Any comprehensive review of the horrendous cases will indicate that, even when the system was reviewed provincially, there was not an independent review. It was biased and discriminatory. It took a long time for justice to happen.
One of the three key questions is about ensuring that the person who is selected for that process has the necessary skills, is independent and is free of seeking to be compliant with the system. Perhaps Senator Joyal's suggestion of a retired judge is the appropriate measure. I would have preferred an independent commission, but perhaps his suggestion is an appropriate alternative.
The other two issues that are not addressed that I am still considering are the other parts of the triangle, that is, that justice delayed is justice denied. The question is timing: Why should it have taken a decade or two of a person's life to be able to overturn an unjust decision?
Honourable senators, what satisfaction do you have, or does any other member of the committee have, that overturning an unfair conviction will be done on a timely basis? I do not see that addressed in a substantive way in the bill. There is no policy indication that this should be dealt with fairly and swiftly. Justice delayed is justice denied is another concern that has not been appropriately addressed. I raise this because you have asked whether it is something that should be dealt with in clause-by-clause consideration. That is up to the members of the committee to decide. I want to alert the committee in the event that they have some comments about whether we have thoroughly addressed that issue, before we go to clause-by-clause. Therefore, one issue is the timing.
Another issues is who is the independent commissioner or the independent review person, and Senator Joyal has come up with something that begs careful thought. However, the intermediate problem is cost, and this would certainly be the Marshall situation and others. We have justice delayed is justice denied, how much time, and what is the cost of doing this. Just think about an Aboriginal person, for example, unfairly convicted with bad evidence. He or she goes through the criminal justice process. For this person to receive justice under the justice system, all the remedies must be exhausted. There cannot be a parallel process. At the end of this horrendous parallel process, that person is then compelled by our system to not only try to have timely justice — which if we look backwards has not been given — but on top of that, the question of cost is raised. That has not been addressed objectively other than through indirect means, which is what Senator Nolin points us to, the split system of administration of justice between the federal and provincial systems. How are that person's costs addressed so that he or she can get the best counsel to assist through a horrendous situation?
Perhaps members who have studied this bill carefully and you, Madam Chairman, can point out how those two problems are being addressed in this bill. We understand how the third problem is being addressed, but how are the first two being addressed? After we have some understanding of that, we can move to third reading and then have a thorough debate about these issues.
Senator Beaudoin: In regard to the question of cost, Senator Grafstein is absolutely right that the provinces are deeply involved directly and indirectly in the criminal law system and application. My question is this: Were they consulted? What is the reaction of the Attorney General of Ontario, or any other province, because they will be involved at least indirectly?
The Chairman: It says here that there were extensive consultations. I can only assume that they would be with counterparts in provincial governments as well. We have officials here who could answer these questions if you want to call them to the table.
Senator Beaudoin: Our system is such that all provinces are involved. I would like to know exactly what their reaction is. If we establish a system and the bill is interesting I would like to know what their reaction will be.
The Chairman: It says in this letter:
...my predecessor...initiated a consultation process to examine ways in which the conviction review process could be improved in Canada.
I would assume that that was done in conjunction with the people in the provinces. Perhaps someone could come to the table and answer our question.
Ms Mary McFadyen, Senior Counsel, Criminal Law Policy Section, Department of Justice: During the consultation process, all the provinces were asked to comment in response to all the questions that were asked. After it was decided how to amend and reform the conviction review process, the provinces were asked for their comments. Their comments were all very positive. They were happy that the power of review was going to remain with the federal Minister of Justice.
Senator Beaudoin: Did they all reply?
Ms McFadyen: Six provinces replied to the consultation process, but they all had the opportunity to do so.
Senator Joyal: Which ones replied?
Ms McFadyen: I do not have that information offhand, but I could certainly provide it.
Senator Cools: To the extent that people here are speaking to the record, I think I should join the group and speak to the record. I am hearing very clearly that we are talking about a proposed amendment that is not about to be proposed right now. That in itself is somewhat unusual. If we are not moving an amendment now, why is it before us? Is an amendment before us or is an amendment not before us? That is purely a procedural question.
Basically, we are being notified of an intention to perhaps later bring an amendment, and that is okay if it is acceptable. However, that is on the procedural points.
On the substantial issue, I should like to register very strong disagreement with the substantive point that is being put forth here. Since this debate is not a debate, I shall reserve my comments for when there is a debate. I shall debate within the debate and not in the pre-debate.
The Chairman: Thank you.
Senator Cools: I wanted to register, for the record, that this committee should very carefully examine the proposition that only judges can be trusted for integrity and independence. I have many problems with that. I am of the opinion that we have many good lawyers and many well-skilled practitioners in the country, inferior court judges, who could do an able job as well. I am not happy about us dispensing with, disposing of and dismissing large numbers of qualified people from a process of selection in respect of handling, managing and executing such an inquiry as would be commanded under proposed section 696.2(3).
I wanted to make that point on the question of integrity and independence and on the question of allowing the minister, the government or whomever to be able to choose from the widest possible pot of talent and resources. People like Alan Gold, Eddie Greenspan and Morris Manning, and many others, have worked in this field. These lawyers are excellent, capable and talented individuals. I have much confidence in many of them. We should allow the minister to have as wide a scope of choice as possible.
My second point deals with the role of Parliament. We should take it as given that a minister, in making such an appointment, should be choosing someone who is skilled, qualified, conversant and capable in the subject matter. If we have reached the day when we must put into a statute that a minister should appoint capable and qualified people, perhaps it is time for us to fold up our tents and go home. It seems to me, as a member of Parliament, that if we have a minister who is appointing unskilled and unqualified people, Parliament should first remove the unqualified and unskilled person and second the minister, and we should remove the two in quick succession. The role that we are describing here in respect of skilled and qualified people is a role that is to be met by Parliament as a whole and not by any statute. To put something like that into a statute certainly is admitting and declaring loudly that Parliament is failing. I do believe that if a minister is appointing such people we must get them both out of the way.
My third point has already been made, and I shall discuss it further. It is very improper of us to attempt to put into law a command to a minister to choose from a very tiny and narrow group of people. I have already made this point. The minister should be able to choose, in the name of Her Majesty, the most qualified, capable, credible and available individual. I do not believe that that pot will necessarily always contain only retired superior court judges. There are many wrongful conviction cases before us, and I believe that there are many more. We need a wide scope to be able to bring forward the best person for the job.
I shall expand on this fully as the debate goes on. I simply wanted the record to reflect that the entire committee does not believe that only judges are independent and have integrity.
Senator Nolin: Ms McFadyen, do you personally understand the meaning of this letter from the Minister of Justice?
Ms McFadyen: I believe I do, yes.
Senator Nolin: If the system has not changed, you must have knowledge of the letter.
During the Christmas period, my researcher and I used looked up the report of the British commission on the Internet. In the first paragraph on page 3 of the letter, the minister talks about the time, the problem that Senator Grafstein raised. The 2000-2001 report of the British commission indicates that, since they started their operation four years ago, there has been a yearly diminution in requests.
Ms McFadyen: That is correct.
Senator Nolin: They state in the report that they have extensively informed the population of the true nature of their mandate, which is not to be another appeal process but to be an investigative body. Since then, they have seen a diminution in requests.
In the same paragraph, the minister says that the commission has a staff of 80 persons. I think it would be fair to say that, of those 80, 50 deal exclusively with screening, the first step of the process.
Ms McFadyen: I believe there are about 50 caseworkers.
Senator Nolin: They are the ones who receive the requests and separate the good requests from the bad requests, what is called in the report ``the first level.'' That is the information we have.
Ms McFadyen: They go through an initial screening process. I think there are about 50 caseworkers who would probably be involved in that. I believe they are also involved in investigating cases.
Senator Nolin: Senator Grafstein raised a question about use of time, and time is important. These people are incarcerated. The experience in the U.K. needs to be properly presented.
In your discussions after the consultation process, did you take into consideration the decision of the Federal Court in Thatcher in 1996 in which the court is basically saying that the legal rights division of the Charter applies to the minister's prerogative in section 690? Did you take that into consideration?
Ms McFadyen: Yes.
Senator Nolin: To what extent? What can you tell us in that regard?
Ms McFadyen: Certainly, when the minister makes a decision, as was clear in Thatcher, there is an obligation to ensure that it is done fairly and that section 7 of the Charter does apply. Before, section 690 was very vague. We will now set out how an application is reviewed. It will certainly, perhaps, create a higher standard for the minister to ensure that these cases are reviewed fairly and properly.
Senator Nolin: As you know, in some decisions, section 7 is labelled as the introduction section of that part of the Charter. When the court is saying that section 7 applies, it means that the old legal rights section of the Charter applies. Have you taken into consideration the independence and impartiality of the process leading to the minister's decision?
Ms McFadyen: We have added more checks and balances. Setting out how the case is reviewed and the factors the minister will consider in granting a remedy in this section will make it fairer. Certainly, if the minister renders a decision, let us say, that is negative, the applicant has the ability to question that ministerial decision in the Federal Court of Canada. It would be held up to see whether the minister had acted fairly under the new provisions. That would be reviewed in the Federal Court to ensure that the minister has acted properly.
Senator Nolin: I am sure you are familiar with the various cases dealing with the independence of the judicial system. I do not have to educate you on Généreux, Beauregard, Valente or on the reference on P.E.I. judges. Is it that kind of independence that you took into consideration when you prepared your amendments to section 690?
Ms McFadyen: We tried to make the process fairer so that the applicant would be aware of what was going on when he submitted an application and be aware of how the case would be reviewed. We would have full investigative power to ensure that everything was reviewed before the minister made a decision. By adding all this stuff, we are making the process more open.
Senator Nolin: Better.
I will refrain and wait for third reading to really get into a debate.
Senator Cools: That is the problem with pre-debate.
The Chairman: Precisely.
Senator Nolin: We are only at the question stage.
The Chairman: We are doing some discussing before we get to clause-by-clause consideration of the bill. Senator Pearson, I believe you have amendments to the bill.
Senator Pearson: I have an amendment arising out of the Minister of Justice's appearance before us.
The Chairman: To which proposed section does it apply?
Senator Pearson: I am proposing an amendment in clause 5, to add after line 7 on page 3, the following. Do I need to read it?
Senator Nolin: I have a similar one.
Senator Pearson: Shall I read this one?
Senator Nolin: Are we there yet?
The Chairman: What I wanted to know was what clauses we should pause at when we are doing clause-by-clause consideration of the bill.
Senator Pearson: Clause 5.
The Chairman: I can group the rest of them, then.
Senator Beaudoin: The question of procedure that has been raised by Senator Cools has not been answered. If we consider the bill clause by clause and we say that we abstain while we wait for debate at third reading, is that what we will do?
The Chairman: What I will do is group the clauses that are not controversial and on which there are no comments. We will group them, pass them and then stop at each one of these clauses, if senators so desire.
Senator Cools: Senator Beaudoin is raising a larger point, the procedural and the parliamentary consequences to pronouncing one way on a clause of the bill and another way later on in the debate. That is one of the major problems with what we are doing now. Senators are largely saying that we shall vote now and oppose later. I do not know how we will resolve that at this moment.
The Chairman: At this point, Senator Cools, all I have is a suggested amendment to clause 5. Any other proposed amendments are out of the purview of this committee.
Senator Beaudoin: I am concerned about the logic. If we say that we will adopt a clause at clause-by-clause consideration, having in mind that at the time of the third reading we may come with an amendment
The Chairman: Do you want me to pause at those clauses in order that you may abstain?
Senator Beaudoin: This is what we want to know. I will certainly not vote on the point that has been raised by Senators Joyal and Nolin. My guess is that at third reading there will be a possible amendment. How can I vote yes today and two weeks from now vote no?
The Chairman: My suggestion then is that I pause at those clauses and you may abstain.
Senator Nolin: I will have comments on clauses 5, 29 and 35.
The Chairman: Are they just comments and not amendments at this stage?
Senator Andreychuk: My concern is around the investigation in the commission process. I am in favour of an independent commission. I want to speak to that at third reading. The clauses that affect the inquiry process through here should be lumped together, so I can abstain and talk about an independent commission. I will not necessarily put in amendments.
The Chairman: You are referring to clauses 70 and 71.
Senator Andreychuk: Yes.
Senator Beaudoin: We will abstain on these.
The Chairman: Honourable senators, shall we proceed to clause-by-clause consideration of Bill C-15A?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 2 to 4 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 5 carry?
Senator Pearson: This is where Senator Nolin and I will move our amendments.
Senator Nolin: Mine comes just before yours in the pagination of the bill. Perhaps I should introduce mine first.
The Chairman: Do you have copies of your amendment?
Senator Nolin: Yes.
Senator Cools: There are no copies in French.
Senator Nolin: I have copies of Senator Pearson's amendment in French.
Senator Beaudoin: Is it bilingual?
Senator Pearson: Oh, yes.
Senator Nolin: Madam Chair, I am currently talking about the previous amendment.
[Translation]
Senator Nolin: I draw your attention to subclauses 5(1) and (2) of the bill. I wish to make an amendment and to include subclause (2.1), but before doing so, I would like to give some explanations.
Two witness groups have expressed concerns about the wording of this part of Bill C-15A. We heard witnesses from the Canadian Association of Internet Service Providers and the Canadian Cable Television Association. The witnesses from both associations requested clarification, and in my opinion their concerns are valid.
Those concerns have to do with the fact that in the course of doing business, they have no effective control over the content carried by their servers. Some witnesses added that if law enforcement authorities asked them to specifically control particular content coming from one of their clients, they could act on such a request.
The current wording of the offence under subclause 5(2) creates a major problem because it makes no provision for criminal intent, such that an offence could be committed without any reference to criminal intent, or mens rea, being required.
I am therefore presenting an amendment to clause 5, by adding after line 37:
(2.1) Section 163.1 of the Act is amended by adding the following after subsection (3):
(3.1) For greater certainty, a custodian of a computer system who merely provides the means or facilities of telecommunications used by another person to commit one or more of the offences in subsection 163.1(3) does not itself commit such offences.
(3.2) In this section, ``telecommunications'' has the same meaning as in section 326 and 327 of this Act.
[English]
You have it in both official languages.
Senator Grafstein: This is an old argument that started with broadcasters who took the position that, subsequent to the Charter, in terms of freedom of speech, they could not take responsibility for what appeared on their network. That, quite frankly, was not a good argument in the sense that they were given a licence for which they were responsible. Therefore, to say that they were not responsible for the material that was broadcast pursuant to their licence was inconsistent with their licence. You either have responsibility for a licence for a period of time or you do not. There are others here who are familiar with that. It has always been a very nice question.
Senator Nolin: It is more than that.
Senator Grafstein: Let me continue. You then come to the next process and now mix and match these processes between a licensed undertaking and, in effect, a nonlicensed undertaking, which is the use of a telecommunications facility that does not require a federal licence and so on, and the two of them are put together.
It strikes me, senator, that the answer to my own dilemma, which should be a dilemma for you, is that you cannot, on the one hand, give someone the right to a commercial enterprise that uses content without conferring on that person who receives a financial and licensing benefit responsibility if their system is being abused.
It strikes me that the answer to that would be to balance the various interests. If someone wishes to be free of responsibility by saying that although they are a broadcaster with a digital service that comes from Yugoslavia that happens to be bad, and although they are getting paid for it, they have a lack of knowledge.
The way to deal with that might be to incorporate in this amendment the word ``knowingly.'' The word ``knowingly'' is another problem of huge debate because we now have 16 variations in the Criminal Code of what the word ``knowingly'' means. This is not an answer because we have not done a comprehensive review of what ``knowingly'' means. We know that it means 17 different things under the Criminal Code. That in itself is a challenge. However, you would receive my support if you say that if it is a custodian of a computer system which is what we are talking about here as opposed to a broadcaster the person does not himself commit an offence provided he knowingly does not contribute. The word ``knowingly'' should be added, or some safeguard to say that this person really does not know what is going on.
I like the idea that if the police bring this to his attention he must do something. However, it may very well be that he knows about this and does nothing about it if it is not brought to his attention by the police. It might be a complaint. There are many complaints now with regard to use of the Internet. Service providers decide to do nothing unless they are challenged by the police. If they are getting remuneration in the public interest in terms of us allowing them to do that, there should be a concomitant responsibility.
Senator Nolin: Senator Grafstein, I totally agree with you with regard to broadcasters in the sense of a CRTC licence. We are talking about a different animal here.
Senator Grafstein: I understand.
Senator Nolin: The service provider offers you the linkage, the transit.
If they are asked to watch for everything that comes through your transitway, they can that do. Perhaps adding ``knowingly'' to paragraph 3 would solve the problem.
Senator Grafstein: That is better.
Senator Nolin: I do not want people to be caught for transmitting something that they cannot control. However, I agree with you with regard to the broadcasters.
Senator Pearson: I also listened to these people. I understand that they felt nervous because they are afraid that they might be found liable through a mistake. However, I was not convinced because I felt satisfied that the term ``for the purpose'' meant that there had to be a mens rea, that there was no way that someone who had no intention would be held liable.
I thought the distinction had been quite clearly made. I would be reluctant to give them freedom from liability in the way that you have suggested there. They might well have the intention, and you are not catching the ones that do have the intention.
Senator Nolin: If they have a computer system, the purpose of the computer system and the purpose of their own business is the purpose of transmission.
Senator Pearson: No. Is not the purpose of transmission the making available for distribution, sale or exportation of child pornography?
Senator Nolin: It is the purpose to transmit whatever can be digitalized.
Senator Pearson: Not child pornography. If they are going to say that they should be free from liability for transmitting child pornography
Senator Nolin: They are offering for business, exchange on a contract, assistance to transmit whatever can be digitalized.
Senator Pearson: That is right. I feel that their concern is captured in this phrase ``for the purpose of child pornography.'' If they do not know, then they are not liable.
Senator Nolin: I am not sure. I want to protect them. I think there is a need for a specific mens rea. We can hear the argument that there is an unwritten rule, that there is a need for mens rea everywhere in the code, but I want to be sure.
Senator Cools: Perhaps for the sake of the discussion or debate we should read the entire clause. Subclause (3) states:
Every person who transmits, makes available, distributes, sells, imports, exports or possesses for the purpose of transmission, making available, distribution, sale or exportation any child pornography is guilty of
The term ``for the purpose'' is applicable in the first part of the clause. The transmitting, the making available, the distribution, the sales, the imports, the exports and the possession are all related for the purpose. It is difficult to have purpose if you do not have knowledge. You are proposing to insert ``knowingly'' between the words ``who'' and ``transmits.'' One cannot have purpose or intention without knowledge. The knowledge is already contained in the terminology in the phrases ``for the purpose of.'' The first part of the clause must be read in close proximity and conjunction with the second part. The term ``for the purpose'' bridges the transmitting, the making available and those other acts with the second part. It must be read as a whole, but Senator Nolin, one cannot do one without the other.
Senator Nolin: In fact, technically, yes.
Senator Cools: Technically, how can you have a purpose without having knowledge?
Senator Nolin: Up to 20 years ago, maybe not. Since we have been able to digitalize everything, you can transmit without knowing what you are transmitting.
Senator Cools: No, it is very clear. We are talking about transmitting on purpose child pornography. Read it very carefully.
Senator Nolin: It does not say ``on purpose.'' It says ``for the purpose.''
Senator Cools: It says ``for the purpose.''
Senator Nolin: Whose purpose?
Senator Cools: I will come back to that. There is another problem. There is a flaw. I should like to bring it to Senator Nolin's attention. I am not that familiar with the French. He made his amendment from the French. If you look at the English, I believe there is a typo or a mistake in the English. If you look, Senator Nolin, Madam Chair, your proposed amendment, translated — you made it in French — reads as follows: ``For greater certainty, a custodian of a computer system who merely provides the means or facilities of telecommunication used by another person to commit one or more of the offences in subsection 163.1(3) does not itself...''
A custodian cannot be an itself. A custodian must be a himself or herself. I call that to your attention.
Senator Nolin: It was translated by our services.
Senator Cools: You can correct that forthwith. That was originally why I had raised my hand; it was to say that I was having difficulty with a him or a her being an it.
Senator Beaudoin: I believe Senator Grafstein suggested that we add the word ``knowingly'' because the word ``purpose '' —
Senator Grafstein: To his amendment.
Senator Nolin: He was suggesting adding it to proposed 3.1. The other option is to include it in paragraph 3.
Senator Beaudoin: The mens rea should be very clear. It is fundamental in criminal law. I think Senator Grafstein's suggestion is a good one.
Senator Pearson: Do you want to amend the entire Criminal Code?
Senator Beaudoin: No, the intention. The word ``purpose'' has its own meaning. Perhaps it is not strong enough. That is why we should have adopted Senator Grafstein's suggestion that it should be ``knowingly,'' because then the mens rea is clear.
The Chairman: Then you get away from the danger of letting off someone who knowingly does it.
[Translation]
Senator Biron: A company that provides communications equipment is responsible for the equipment it makes available for use, but is not responsible for the way in which that equipment may be used.
Senator Nolin: That is precisely the point of my amendment. The idea is to distinguish between the container and the content.
Senator Biron: If there is a request, a telephone company can do some checking, but it cannot monitor the millions of calls being made every minute.
Senator Nolin: If you do not have control, you cannot know everything. In other words, the service provider supplies clients with equipment, but does not necessarily know how they use that equipment. A person cannot be held responsible for a transmission without a finding of criminal intent to allow such a transmission. I have no problem with the principle of criminal intent, but it has to exist. We cannot tell carriers that they will be responsible for carrying illegal information without illegal intent.
[English]
Senator Andreychuk: The providers have an honest concern here because of the debate that has just occurred. We are into a new technology. It may not be so new to some people, but not everyone across this country is using the new technology. There are many people who do not understand that a provider simply provides the system. That provider is not monitoring and is not obliged to monitor transmissions on his system. The minister was quite clear when she said that it was not the intention to charge the providers if they simply provide the system.
On the other hand, the minister stated that if one of those providers was part of a system of pornography, they should not be let off the hook. The minister felt that what they had in the law was sufficient. I tend to agree that the amendment is correct. It may not be needed in 20 or 25 years, but think of the hundreds of judges across this country, sitting in every community in the far reaches. I must be honest. They are not the youngest of our population, in many cases, who grew up with computers and new systems. There are some who are being dragged into the technology age and might say: ``Hey, you had this on your system and you were not monitoring it?'' They will give the interpretation that the industry is worried about in some cases across Canada.
I do not think it was the minister's intent; I do not think it is the intent of the industry. However, there is some doubt as to whether all judges will take the same inferences from the proposed section as it is stated as the minister intends. Therefore, the clarification here is simply that by providing the system you will not be guilty. However, if you have knowledge, and if you are part of the process of pornography, you will not be off the hook. This was for better clarification that we are not going after providers.
Whether the wording is correct or not, I think what Senator Nolin is attempting in his amendment is necessary as a signal to the interpretations for police, for prosecutors, for judges, that they do not go after providers because they are merely providers. There is that risk until the technology becomes so commonplace that we can be assured that all Canadians are using and understanding the technology. I am not sure our judicial system is that current with modern technology.
[Translation]
Senator Joyal: I am trying to make the necessary distinctions. Clearly, the carrier of telephone conversations — the telephone company — is not responsible if someone uses the telephone, for example, to harass or make death threats against the person on the other end of the line.
If a user of the system transmits pornography, it is understandable that the carrier or company that transmits the digitized message — the image — is not responsible. Take Vidéotron, for example; how does the company react if it receives a notice from the police that so and so is transmitting child pornography? The carrier is thus formally informed by the police. What does the company do? What responsibility does the company have to cut off service to the originator?
Senator Nolin: In your example, there are two situations. The comparison with the telephone company is a very good one because most service providers, except Vidéotron, use telephone lines. It is basically the same system, the same type of conduit, that serves two different types of computer. Only Vidéotron uses another type of conduit.
In both cases, whether it is the telephone company and a voice conversation, or a service provider and a digitized communication, if the conduit owner is asked to enter the system to intercept a communication — this is already done under the Criminal Code for telephone communications — then the service provider will do so. Otherwise, the Criminal Code contains a number of provisions to make the service provider comply.
In the case of Internet service providers, we have not yet developed a system similar to what we can do with wiretapping, but there is nothing to stop us from doing so, so that we can enter a digitized data transmission system. The offence we are discussing covers all of that. Ultimately, telephone service providers are also included because they transmit.
Senator Joyal: But there is also the term ``purpose.''
Senator Nolin: There are the beginnings of a defence in the term ``purpose.'' Personally, I insist on their being a defence. We create lots of defences; soon, there is to be an amendment to expand an existing defence. There are defences under the Criminal Code to make sure that the real offender is identified. There is a danger that more people will be caught than was intended. That is my only purpose. I certainly do not intend to shelter an individual or organization that commits a criminal offence.
[English]
Senator Grafstein: First, it is important that we separate in our minds two things. It is difficult here because sometimes there is a merger of the two when the computer system uses both voice and data.
Senator Nolin: The voice is digitalized.
Senator Grafstein: That makes it more complex. At the end of the day, the definition here is not dealing with child digital information, it is dealing with child pornography. It must be, I assume — and I have not thought this through but I will — we are talking about images here.
Senator Pearson: Not necessarily. Pornography is also written material.
Senator Joyal: It could be written materials.
Senator Nolin: Senator Grafstein, keep in mind that everything that goes into your computer, even tying a word or using a picture, needs to be ``numérisé.''
Senator Grafstein: I am glad Senator Pearson understood this. I am trying to raise the complexity of the word ``pornography'' per se. You then move to the next stage of how you separate, for criminal purposes, an offence that will achieve the detrimental interest of being contrary to public interest, which is child pornography. Now you now have three cases. You have someone who is, in effect, in the business; you have someone who, in effect, distributes it who may be in the business; and then you have the provider who is providing the link. That provider may be a combination of a telecommunications network or a computer system that might use both line and hard line together.
The question is this: Where is culpability here? If you just say ``purpose,'' does this purpose, in effect, without knowledge cover those elements? Frankly, it strikes me that it does not. Then it is back to your proposal, Senator Nolin, about imposing a clearcut definition.
Let us use the example that Senator Joyal used, because that will help us. The telephone system does two things. People harass others on the phone with pornographic images, verbal and otherwise. Bell Canada says it cannot do anything about it because the caller has paid for using the system. The caller may even have placed a long distance call. So what does Bell Canada normally do? Bell Canada will tell a complainant that he or she has to demonstrate that the system is being used for that particular purpose. Then I think Bell Canada is obliged to respond, to search out the harasser and do something about it, maybe cut them off.
I do not know the answer. I know from personal examples, when people come to me with telephone harassments, that Bell Canada has taken a standoff position and has not solved the problem.
We are not imposing any responsibility here to clean out the system. When you go through the complex levels, the answer is back to mens rea. How do you impose on this complex system the same old good tests? Old law is also good law, which is mens rea. How do you apply the knowledge and the information?
The 800 numbers are an example. People do not dial 800 numbers without searching behind the 800 numbers to find out whom you will reach. Absent knowledge and mens rea, you have this provision.
You cannot hinder an innocent person, but there is some knowledge. It may not be knowingly for the purpose of mens rea to commit the offence, but that person may have a level of knowledge that is one step before mens rea. That person knows or ought to have known, perhaps.
We all believe in freedom of the airwaves and limited interference with freedom of speech and expression. There must be some sort of balance here. It is perhaps in the words ``knew'' or ``should have known.'' Therefore, the test should be applied here in some fashion if you want to have an exculpatory clause.
[Translation]
Senator Nolin: Senator Grafstein, it is even fuzzier in French.
Take all of the verbs in the first part, in other words, every person who ``transmits, makes available, distributes, sells, imports, exports.'' Let us just deal with the first two: ``transmits'' and ``makes available.'' Take just the first, ``transmits.''
[English]
It is even less than ``makes available,'' just to transmit. You have the same verb in English. Make a sentence and cut some verbs.
[Translation]
Every person who transmits child pornography is guilty.
[English]
The Chairman: Yes, but this clause talks about more than just Internet pornography; this is talking about the import and export of pornography, as well.
Senator Nolin: The purpose of my amendment is to ensure that the transmitter, the provider of a conduit, will not be caught in the verb ``transmit.''
The Chairman: What about an Internet service provider who is actually in on the deal and conspiring with a subscriber to distribute this material, who then claims under your amendment that he was merely transmitting it?
I like the wording that is there, ``for the purpose of.'' I think that covers it.
Senator Cools: As a matter of fact, Chairman, if I were drafting this and trying to find a word that would cover all the instances, circumstances and considerations, I would choose ``for the purpose'' because it is better than ``intending to.'' It is better than ``knowing.''
I have done a fair amount of work with drafters. As I read this, the drafters were looking for words that encompassed, embodied and contained all of those thoughts on intentions, knowledge and so on. They came up with the term ``for the purpose of.'' Perhaps ``for the purpose of'' is a routinely used word.
Senator Grafstein: Has there been a legal interpretation of the word ``purpose.''
Senator Cools: Are you asking the chairman or me?
Senator Grafstein: I am asking you.
Senator Cools: I do not know, but we could look into that.
The Chairman: I do not know, but I would expect there has been. All the way through the Criminal Code, ``for the purpose of'' is used.
Senator Cools: We do not have to be that complicated. The world does exist, without legal interpretation of every single word. The drafters are trying to show knowledge of, an intention and mens rea. Perhaps ``for the purpose'' is defective; we do not know that yet.
It seems to me that for the purposes of drafting ``for the purpose'' is pretty comprehensive. I have been listening to Senator Nolin carefully. I do not see how there can be a purpose without a knowledge and without an intention. I still cannot see it.
Senator Nolin: Technically, it can.
Senator Andreychuk: I wanted to comment, Madam Chair, on what you said. The amendment says that the mere fact that you are a provider of the service will not of itself be an offence. Senator Nolin is saying that, if I understand the amendment. Therefore, if any provider does anything else but provide, in other words, if he is involved with someone, if he has knowledge and if he is the transmitter of that and part of the scheme, he will be charged. He will be treated like any other felon who deals with pornography.
The point here is to say simply that because you are in the business of providing that in itself cannot constitute the offence.
The Chairman: The amendment does not say ``of itself.''
Senator Andreychuk: It does.
The Chairman: It says ``does not itself.'' It is the custodian.
Senator Andreychuk: We have to clean up that language.
Senator Cools: The drafting in the English is imperfect. There is something very wrong. Senator Nolin has not clarified what it should be. In point of fact, he should have withdrawn the English translation and put the better one before us.
Senator Nolin: You want ``himself'' to be there?
Senator Cools: I am saying that if you meant ``itself,'' a word or two is missing before ``itself.'' If ``itself'' is what was intended, that is correct; it should be ``himself'' or ``herself.''
Senator Nolin, your amendment is defective in English. I do not know about the French.
[Translation]
Amendments are often tabled in French. The English version will be corrected in due course, but the French version is fine.
[English]
The Chairman: Time is moving on. At this point, I believe we are ready to vote on this amendment as proposed by Senator Nolin.
Senator Cools: We can only vote on the French version.
The Chairman: We shall then vote on the French version of this amendment.
Senator Cools: How would we do that procedurally?
The Chairman: I have no idea, because I am still not sure what it should say in English.
Senator Nolin: It is very simple, just read it. It is very simple.
Senator Cools: You do not have to have a translation provided. It is a courtesy; it is not necessary.
Senator Nolin: I do not need any lecture. You know exactly what I mean by my amendment. If you do not want to support it, vote against, please.
Senator Cools: Talking about lecturing, that is a lecture.
The Chairman: At this point, we are proceeding to the vote. We are voting on the French version of Senator Nolin's amendment.
Senator Nolin: Let us have a recorded vote, please.
The Chairman: Call the roll, please. I will be voting.
Ms Josée Thérien, Clerk of the Committee: Senator Milne.
The Chairman: No.
Senator Andreychuk: Yes.
Senator Beaudoin: Yes.
Senator Biron: Yes.
Senator Cools: No.
Senator Jaffer: No.
Senator Joyal: Abstain.
Senator Moore: Abstain.
Senator Nolin: Yes.
Senator Pearson: No.
Senator Rivest: Yes.
Ms Thérien: Five yeas, four nays, and two abstentions.
The Chairman: The amendment carries, on division.
Senator Pearson, you have an amendment to proposed section 5.
Senator Pearson: I move the amendment that has been distributed.
The Chairman: It has been moved by Senator Pearson:
That Bill C-15A be amended in clause 5, on page 3, by adding after line 7, the following:
``(4) Subsections 163.1(6) and (7) of the Act are replaced by the following:
(6) Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3), (4) or (4.1).''
Are we ready for the vote on this amendment?
Hon. Senators: Agreed.
The Chairman: All those in favour?
Hon. Senators: Agreed.
The Chairman: The amendment is carried.
Senator Cools: Will it show that it was carried unanimously?
The Chairman: Yes. It was carried unanimously.
Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 6 to 28 carry?
Hon. Senators: Agreed.
The Chairman: Clauses 6 through 28 are carried.
Shall clause 29 carry?
Senator Nolin: I have a comment on that. I do not have an amendment.
[Translation]
Senator Nolin: Last December, when I requested that we not go ahead with clause-by-clause consideration of the bill, it was because I wanted above all to read the documentation the department had given us. I read it with great interest, especially in relation to the preliminary inquiry issue.
The 1991 Supreme Court decision required the department to reconsider the preliminary inquiry, because the decision requires the Crown to disclose all of its evidence at the preliminary inquiry stage. The department must have thought about whether it wanted to retain the preliminary inquiry procedure.
I came to the same conclusion as the department. We need to retain preliminary inquiries and make them more effective. The trial judge will be in a position to asses the weight of the evidence disclosed at the time of the preliminary inquiry.
I would like to thank our witnesses for giving us this information. I share their opinion.
[English]
The Chairman: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 30 to 34 inclusive carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 35 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 36 to 69 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 70 carry?
Senator Nolin: Abstain.
Senator Andreychuk: Abstain.
Senator Beaudoin: Abstain.
The Chairman: Clause 70 carries, on division.
Shall clause 71 carry?
Senator Nolin: Abstain.
Senator Andreychuk: Abstain.
Senator Beaudoin: Abstain.
The Chairman: Clause 71 carries, on division.
Shall clauses 72 to 93 carry?
Hon. Senators: Agreed.
Senator Beaudoin: When we abstain, is it registered as such?
The Clerk: I put ``on division.''
The Chairman: Shall clauses 72 to 93 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that this bill be adopted with amendments?
Senator Cools: Something should be included in the report. Yes, the amendment has been adopted, but as I said before and, perhaps I should have developed it more as a procedural point we establish here that the amendment is defective at least in the English version. The problem is that I do not have the French version to analyse the French one. I do not know wherein the defect lies. In the report, this fact must be included, namely, that the English version was withheld or withdrawn.
Senator Nolin: No.
Senator Cools: It was defective.
The Chairman: We passed the French version, though.
Senator Cools: The chairman should inform the chamber that there was a problem with the English version that was put before us.
The Chairman: I will do so.
Is it agreed that this bill be adopted with amendments?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that I report this bill, as amended, at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
The committee adjourned.