Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for November 29, 2007
OTTAWA, Thursday, November 29, 2007
The Senate Standing Committee on Legal and Constitutional Affairs met today at 10:52 a.m., to consider Bill C-13, an Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: We have quorum and we will continue our consideration of Bill C-13, an Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments). Our witnesses for this first part of our hearings this morning are, from the Barreau du Québec, Mr. Louis Belleau, President of the Criminal Law Committee with the Barreau du Québec, and Ms. Nicole Dufour, and from the Fédération des associations de juristes d'expression française de common law, and Mr. Rénald Rémillard, Director General. Welcome to you all. We will have approximately one hour to hear from you. We would thus ask both groups to make their presentation before going on to the rounds of questions. In order to allow as much time as possible for questions, I would ask you to be as specific as possible. We will begin with the representatives of the Barreau.
Nicole Dufour, Attorney, Research Services and Secretary, Criminal Law Committee, Barreau du Québec: Madam Chair, I would like to thank the honourable senators for their invitation. We are very pleased to participate in your discussions.
I am an attorney with the research services of the Barreau du Québec. As such, I coordinate the work done by the criminal law committee which was mandated to review Bill C-13.
I am accompanied by Mr. Belleau. He has been practising law since 1981, mainly criminal law. The Barreau has about 22,000 members. Its main mandate is to protect the public, which it does by ensuring rule of law, maintaining the separation of powers, promoting equality for all in the eyes of the law and protecting the often precarious balance between civil rights and the powers of the state.
The Chair: Ms. Dufour, you are speaking a little bit too quickly for the interpreters.
Ms. Dufour: I will start over. The criminal law committee is made up of an equal number of attorneys general and defence lawyers. University professors also sit on this committee. I will be commenting on some clauses of the bill, and my colleague will be speaking about the provisions of the bill that target the language of the accused.
We went through this bill by clause: clause 8 of the bill amends subsection 259(1.1) of the Criminal Code, which stipulates that the court may authorizes the offender to operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition, if the offender registers in an alcohol ignition interlock device program established under the law of the province in which the offender resides. The amendment proposed by clause 8 makes it possible for the offender to operate a motor vehicle without having to make an express application to the court. The bill also amends subsection 259(1.2) of the Criminal Code by specifying that the minimum period during which an offender who is registered in such a program may not operate a motor vehicle equipped with an alcohol ignition interlock device begins when the sentence is imposed, and not when the court issues an order prohibiting the offender from operating a motor vehicle. Lastly, subsection 4 of clause 8 of the bill stipulates that operating a motor vehicle during a prohibition period is not an offence if the offender is participating in an ignition interlock device program and complies with the conditions thereof.
The Barreau du Québec considers that the proposed amendment specifies the content of the provisions of the Criminal Code concerning the alcohol ignition interlock device program and is in agreement with these amendments and specifications.
I will now proceed to clause 26 of the bill, which proposes amendments to subsections 640(2) and 640(3) by stipulating that, on the application of the accused, the judge may order the exclusion of all jurors from the courtroom, in order to decide on a question concerning challenge for cause. The Barreau questions the legislator's decision to allow only the accused to make such an application, since it believes that the Crown should also be entitled to do so.
Clause 29 amends subsection 683(5) of the Criminal Code. The Barreau feels that it would be advisable to specify that the undertaking or recognizance could include conditions, in order to be consistent with other provisions of the Criminal Code, for example, section 679.4.
Clause 29 also amends section 683 of the Criminal Code. We believe that this amendment should instead appear in section 687, since it concerns powers of the court with respect to the appeal of a sentence.
Clause 30 amends section 685 of the Criminal Code by allowing the registrar to refer a notice of appeal that should have been filed with another court to the Court of appeal, so that the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.
The Barreau du Québec is concerned that none of the parties are given notice before the court rules. We propose that the legislation should provide for the obligation on the part of the registrar to notify the parties or their representatives, prior to the hearing, of the use of the process provided for in section 685.
Clause 35 amends section 720 by providing for the possibility of delaying sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court. The Barreau questions the obligation of ensuring that the program is certified before being able to participate therein, in cases where the crown attorney and the offender consent thereto. We submit that the court should be able to continue to exercise its judicial discretion. Excellent programs are currently available in Quebec, but cannot be offered because they have not been certified.
The certification process is long and complex. We believe that the legislator's objective would be achieved if this process were made simpler. I will now turn the floor over to my colleague, who will continue on the issue of the language of the accused.
Louis Belleau, President of the Criminal Law Committee, Barreau du Québec: Madam Chair, I will now discuss the language rights of the accused as set out in Bill C-13. Part XVII of the Criminal Code deals with this issue. The Supreme Court, in the Beaulac case, stated that equal access to designated courts in the official language of the accused is a substantive right and not a procedural one that can be interfered with. It is the responsibility of Parliament to define the scope and breadth of language rights, which are separate from the right to a fair trial. This is therefore a separate branch of individual rights.
In the province of Quebec, criminal courts have always interpreted the provisions of the Criminal Code as meaning that the accused had the right to choose the official language in which he or she wished to be tried.
The courts of Quebec have also interpreted the provisions of part XVII as imposing upon the state the obligation to ensure not only that the court understands the language in which the accused has chosen to be tried, but also that it uses this language during the trial. This includes the judge, the crown attorney and others.
In addition, the Quebec Court of Appeal has ruled that notwithstanding the provisions of section 103 of the Constitution Act, the prosecutor, that is, the representative of the Crown, must use during the hearing the official language in which the accused has chosen to be tried. This right of the defendant to be tried in the language of his or her choice is considered as taking precedence over the rule according to which defendants who are accused as a group of having participated in a common undertaking should be tried together. The idea of a bilingual trial has generally been rejected in Quebec, because it involves considerable difficulty in deciding when each language should be used, given that there is always one of the accused who is penalized by the use of the language that he or she does not understand.
The issues in a criminal trial are obviously very serious, and the accused has the fundamental right to understand what is happening during his trial. The fact of imposing the use of an interpreter on that person causes them real harm, regardless of the quality of the interpretation — and it must be said that in our jurisdiction, the interpreters are highly competent.
Under any circumstances, translation imposes a burden on the accused, introduces distance between the person and the trial that is unfolding, and the accused has a tendency to become a spectator rather than a participant. One need only to have spent a day in a courtroom where an interpreter is working to realize that at the end of the day, the client is exhausted by the simple fact that he or she has constantly been obliged to refer to the interpretation in order to try to make sense of what is taking place during the procedure. It is clear that this imposes an extra burden on the accused.
The current approach in Quebec has ensured that for several years now, defendants who have chosen to have their trials in the minority language are heard by a court that understands that language and that speaks it during the hearings. Quebec's position is in line with the provisions of the charter that are intended to encourage the move towards equality, the equal status and use of French or English. Quebec has not hesitated to put the necessary resources into offering defendants the choice of having their trial in the language of their choice. Courts in every jurisdiction have competent judges who understand and speak both official languages. The Office of the Director of Public Prosecutions has several prosecutors who understand and speak both official languages. The amendments proposed to part XVII unfortunately risk resulting in a setback of language rights.
As for section 18, subsection 1, which is intended to amend subsection 3 of section 530 concerning the notice, under the current subsection 533, the judge must advise the accused of their right to be judged in the official language of their choice. The proposed amendment provides that the judge ensure that the accused be advised of his or her right. According to our understanding, this obligation does not necessarily imply that the notice be given to the accused in the presence of a judge. Under the next section, we do not know exactly who should give the information to the accused, nor in what form this information would be given.
It is difficult to understand why it would have become necessary to do away with the obligation a judge has to advise the accused of his right as this amendment can only have the effect of increasing the uncertainty as to whether or not the accused received the information and above all understood the extent of his or her rights.
Current subsection 533 does not seem to impose any onerous obligations on the court. The advice does not have to be given verbally. It could suffice to give the defendant a standard, bilingual brochure explaining his rights. We believe that in an area that is so fundamental, it is critical that the accused be properly informed of his or her rights and that the proposed amendment not tend to encourage informal information being given to the accused. We feel that the Criminal Code should set out the precise wording of the notice to be given to the accused.
As for section 18, subsection 2, this amends the Criminal Code provisions that allow the court to vary an order to hold a trial in one of the official languages. This provision provides that a judge can decide, despite an order that has been granted that the trial be held in one particular language, that the trial be held before a court in which both official languages are used. In our opinion, this new provision risks jointly compromising the rights of the accused person, because it introduces as a criterion for decision on the necessity of holding a ``bilingual'' trial, and the fact that the accused be judged with co-accused.
As we mentioned a little earlier, Quebec case law recognizes the right of the accused to a trial in his or her language regardless of the fact that the person may have been charged alongside others in a common case. They may prefer to be judged in the other official language. When such circumstances arise in Quebec, the court has a tendency to order the holding of separate trial.
In the case of a mega-trial, and I am referring particularly to the Stadnick case which resulted from Opération printemps 2001, that is trials that occurred over a period of several months, Mr. Justice Réjean Paul of the Superior Court ordered a separate trial to be held for two individuals who were anglophones and who went through long, complex and costly trials where everyone was speaking English, including the prosecutors — except, of course, for the francophone witnesses who had the right to express themselves in their own language. As a result, objections to the cost and the lack of administrative facilities have been rejected in our province in favour of the respect of an individual's language rights.
It seems to me that this proposed amendment is introducing an important criterion into the analysis; of course this is the case because it is being added to those that already exist, and it is the fact that the other co-accused speak a different language from that of the accused.
This will result, in my opinion, in the courts tending to choose the holding of a joint trial in the official language of the majority or in the predominant language of the jurisdiction in which the trial will be held.
Section 19 of the bill introduces the new section 530.01, which obliges the prosecutor to provide the accused with the translation of any portion of an information or indictment against the accused that is in an official language that is not that of the accused. In other words, if the information or the indictment was originally drafted in French and the accused is an anglophone, he can ask for the translation, and we must provide him the information or the indictment in English.
That seems to be progress because with the current section 17, there is no provision to that effect. It is a step forward in the sense that the law now states that this translation must be provide. However, we feel that this provision risks being interpreted in a restrictive manner and that it might be invoked in order to refuse the accused the translation of other documents to which he may have a right. It should in fact clearly state that the accused has a right to a translation of the evidence that the prosecution intends to file against him at trial. This is what was decided in Stadnick, where the judge clearly stated that not only should the legal processes be drafted in English, but that the evidence that the Crown intended to file during the trial should be translated.
In Quebec, there are cases that are currently before the Court of Appeal that deal with the right of the accused to receive a translation of the disclosure of evidence. In other provinces, it is a recurring issue as to whether or not the accused can demand that the Crown's case against him be translated, which would normally be disclosed upon disclosure.
We fear that the introduction of a section that limits the right to translation to only the information or the indictment will result in an argument to oppose the disclosure of evidence and the effect of this would be to reduce the ability of the accused to present a defence.
As far as section 20 is concerned, it introduces the new paragraph 530.1(c.1) which allows the court to authorize the prosecutor, if circumstances warrant, to examine or cross-examine a witness in the official language that is not that of the accused. When the court has decided that a trial is to take place in English, this paragraph authorizes the crown prosecutor to examine the witness in his language, that is to say in French if the witness is a francophone of course. This creates an imbalance because then, counsel for the opposing party is in a situation where he or she will be authorized to examine a witness in his own language whereas the accused will have to turn to the services of an interpreter.
One only needs to be in a courtroom to realize that it is a handicap for a lawyer examining a witness to have to resort to the services of an interpreter. It gives the witness an opportunity to reflect, to analyze his or her answer to the question, therefore there is a lag for the accused or for the person who is doing cross-examination through an interpreter, compared to the person who can cross-examine directly.
From our perspective, there are circumstances in which it would be preferable to allow the Crown to examine a witness in his own language, but it would be best to have this permission granted with the consent of the accused so as to maintain fairness or equality of opportunity for all participants in the trial.
As for paragraphs (d) and (e) of section 530.1, in their current form they provide that the judge and prosecutor speak the language of the accused where an order has been granted for a trial in that language. The amendment being proposed would allow, or oblige the judge and the prosecutor to speak either the language of the accused or both official languages. Given that no one person can speak two languages at the same time, this amendment allows the prosecutor and the court to speak one or the other language and not necessarily that in which the trial should be held, pursuant to the choice of the language of the accused.
In our opinion, this provision will move us towards a watering down of the right to a trial in the language of the accused by allowing the prosecutor and the judge to use the other official language. This runs the risk of undermining the rights of minorities and encouraging the provinces not to invest the necessary resources that will provide the accused with the judge and prosecutor who speak the minority language and therefore this could represent a setback for the progress of language rights in this country.
Section 21 of the bill deals with the possibility for a judge presiding over a preliminary inquiry of making an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language in the case where the trial is being presided over in both official languages. The respect of the right of the accused to have a trial in the official language of his choice must be, insofar as it is possible, ensured.
We find that in comparison to the current provisions of section 530.1, this is a step backwards because of the absence of this concept of ``insofar as it is possible'', and in the existing legislation, there is also no concept of rotating the official languages that might be spoken, that is French during one part of the trial and English during another part. This provision, when read together with the other provisions, concerns us because it gives the court the opportunity to get around the right of the accused to a trial in the official language of his or her choice by imposing a bilingual trial during which it will be possible for the judge and the crown attorney to use the official language of the accused parsimoniously. In our opinion, these provisions result in a reduction of the language rights of members of the minority within our criminal justice system.
The Chair: Thank you very much.
[English]
The Quebec bar did submit a brief, and it is available. They submitted their brief in French only, and we have not had time to have a translation prepared. If members wish, we can probably prepare an informal summary in English — before we can get a proper translation. However, I must say that the brief itself is densely written, such that the informal summary would be nearly as dense as the brief. That said, it is available for those who can benefit from it.
[Translation]
Rénald Rémillard, Director General, Fédération des associations de juristes d'expression française de common law: I am the Director General of the Federation of Associations of French-Speaking Jurists of Common Law. We call it FAJEF for short. Unfortunately, our President Ms. Louise Aucoin was not available today. Therefore, I will present.
If I may, I would like to talk to you about the Fédération des associations de juristes d'expression française de common law. The federation is made up of seven French-speaking jurists' associations. Not all of our members have French as a mother tongue. Our mandate is to promote and defend the language rights of francophones in minority situations, particularly with regard to the administration of justice. Our organization does not have a mandate to defend the interests of the profession. We really have a community mandate, particularly including language rights.
For your information, there are seven French-speaking jurists' associations in the four western provinces, in Ontario, New Brunswick and Nova Scotia. The seven associations represent 1,300 French-speaking jurists across the country. The Fédération des associations de juristes d'expression française de common law is also a member of the Fédération des communautés francophones et acadienne du Canada. We are involved with francophone and Acadian communities in Canada.
My presentation today will deal with Bill C-13, particularly the amendments of a linguistic nature that have been proposed for the Criminal Code in this bill.
First of all, I would like to emphasize that we consulted our members when we heard about the bill in order to get some feedback: we have several crown attorneys who are members, and you will hear things that are different from the Quebec reality. The language rights reality is very different as it is practised in the provinces outside Quebec, with the difference or limited exception of New Brunswick. You will understand that some of the things that we will say are different from what you have heard from the Association du Barreau du Québec.
We are largely favourable to this bill as well as to the proposed amendments on language rights, because for us, it is progress compared to what existed in terms of official languages in criminal matters.
Judges would be obliged to ensure that all accused, whether they are represented or not, have the same rights, because currently, there is a distinction; only those who are not represented have this right. They have the right to be advised. The amendment extends that right now to people who are represented. In practice, lawyers often do not inform their clients of their right to a French trial in the provinces outside of Quebec.
It is important that the judge ensure that this information or this right be expressed in one way or another. As a federation, we are trying to amend the code of professional conduct at the Canadian Bar Association so that a clause be added obliging lawyers to inform their clients of their language rights, when those language rights exist in the province. We have not managed to do so yet.
The Beaulac case repeated this information in the comments of the Supreme Court. It was one of the issues. They talked about the fact that this right should only be for non-represented accused who should be advised, and why the others should also be.
Only accused that are not represented are informed of their right to a criminal trial in the official language of their choice. When we appeared before the Standing Committee on Justice and Human Rights on May 3, 2007, we had proposed four amendments to Bill C-23. Three of those four amendments were passed and they were all made part of Bill C-13. The only one set aside was our recommendation concerning the automatic provision of a translated version of the information and the indictment rather than only upon request by the accused..
Our rationale was questioned at the time. If a request was made to have a trial held in French, then why make a second request to have the charge sheet translated into that language?
Some provinces seem reluctant to make it automatic. That may be one of the reasons why it is not in this bill.
In view of the progress that has been achieved in the area of language rights, the federation does not see it as an impediment to the adoption of the bill.
However, we feel that Bill C-13 raises two other important issues that should be considered in the near future. These are slightly outside the scope of C-13.
First, since the right to a criminal trial in the official language of one's choice requires that at least one bilingual judge be available in each one of the provinces and territories, the federal court judicial appointment process will have to be amended to better reflect that reality.
For example, the bilingual capabilities of each one of the candidates will have to be assessed. There must be enough bilingual judges to ensure that everyone will have equal access to legal proceedings in French in every Canadian province and territory, particularly in the case of criminal proceedings, regardless of the location.
It is important that the language rights afforded to defendants in criminal proceedings be extended, in the near future, to all proceedings related to such a trial, as well as to other types of inquiries and hearings under the Criminal Code including bail hearings and requests to vary probation orders. We would like these provisions to be broadened to include the right to an appeal in the language of one's choice.
Some may say that it cannot be done at the Appeal Court level. Recently, a panel of bilingual judges heard a trial in French, in the Yukon; these judges were from British Columbia. It has been done. Recently, a panel of three bilingual judges from Alberta heard a case that was conducted entirely in French in the Northwest Territories. And we heard recently that Manitoba has a panel of bilingual judges.
Immersion is constantly increasing the bilingual capability of the courts. What was unthinkable 15 years ago will be possible within the next few years. Practice seems to be taking the lead over law in some legislation. Those are my comments, and I will now be happy to answer your questions.
The Chair: Thank you very much. I will now ask Senator Merchant to ask the first question.
[English]
Senator Merchant: Mr. Belleau, you are the president of the committee on criminal law. I have two areas of questions; I shall ask both questions at the same time.
Clause 24 allows the government to directly indict and then force an accused to have a trial with a judge and jury. How do you feel about that? Could you elaborate about the expense for the accused and whether this is moving us toward an Americanization of our system, where everything goes to trial by jury?
Clause 7 will provide minimum sentences for impaired driving causing death and impaired driving causing bodily harm. Am I correct that if there is a minimum sentence then conditional sentences as a result are no longer available as an option for the sentencing judge? In Saskatchewan, the Court of Appeal has held that the minimum imprisonment for such an offence is 15 months, even if the accused has no criminal record and is in every other way a good citizen. This imposes a minimum sentence in a sneaky way, taking away the power of judges to show leniency in appropriate circumstances and to give a conditional sentence. Yes, it refers to a $600 fine, which no one will get. If an accused causes bodily injury or death, he or she will go to jail.
Do you know what I am trying to say? They are talking about a $600 fine.
[Translation]
Mr. Belleau: I think I understand. But if the minimum sentence is a $600 fine, if the judge were to impose a fine, then a conditional sentence would not even be a consideration. If the minimum sentence is 14 or 90 days, you would be correct in saying that this minimum sentence would prevent the judge from ordering a stay.
With respect to clause 24, we made no comment on the amendment to section 568. I would have to take a closer look at it. The obligation for an accused to have a trial by jury already exists, and is not something that the attorney general has added. It may have been done for reasons of consistency. I will take a look at the relevant section of the Criminal Code, as I do not believe that it would have any effect on current legal practices. It already exists. The prosecution can force an individual to have a jury trial rather than to be tried by a judge alone. It is a privative provision in common law, but it already exists.
The Bar's position is that the defendant's choice should be respected in most circumstances, but this is a constitutional issue that was upheld by the courts.
[English]
Senator Baker: I should like to welcome the witnesses to the committee, and especially to congratulate Mr. Belleau for his great contribution to the law in Canada and the fact that he has made law in Canada on several occasions, the most recent regarding the solicitor-client relationship, the way a client funds his lawyer. Mr. Belleau has appeared before the Supreme Court of Canada many times in classic cases.
Mr. Belleau is an expert on disclosure. He listened to the witness on his right, who explained that this bill is an improvement on the situation, in that, as things stand now, only the preliminary inquiry and the so-called trial, as it is called — presuming it is the proceeding involving the trier of fact we are talking about — are covered under the present law regarding the rights of the accused to be heard in the language of his or her choice, either English or French.
The witness to his right said that what has been improved in this bill is that the information will now be provided in the language of choice of the accused. In addition, if the accused is represented by a lawyer, the judge will now say, ``You have a right to a trial,'' at the person's first appearance before a judge.
If I understand you correctly, sir, you said that an information or indictment tells you nothing. When you say an information or indictment does not really tell you much, what further information do you think should be disclosed by law, in order to give the accused an idea of what he or she is charged with upon first appearance before a judge or upon plea? The first appearance, as written in this law, is simply to select a day for plea. However, on the accused's plea date, which is his or her second appearance, what information should be translated in the language of the accused's choice, apart from the information, to give the accused what this intends to give the accused, and that is an idea of what he or she is being charged with, in order that he or she may plead guilty or not guilty?
[Translation]
Mr. Belleau: First, let me say that I agree with Mr. Rémillard who said that the concept of a notice provided to an unrepresented defendant should be extended to all defendants. That is a step in the right direction.
The reservation applied to the fact that the judge was under no obligation to provide the notice himself, so something was added, while at the same time the guarantee that a notice would be given seems to have been withdrawn. With respect to translation, matters relating to disclosure have been evolving constantly, but have been dealt with by the Supreme Court of Canada. In some cases, when an investigation has been ongoing for four years, it would be impossible to provide all of the evidence when the defendant first appears. Most of the time, the prosecution only lays a charge when the evidence is ready to be disclosed.
In lesser cases, a minimum amount of evidence is disclosed when the defendant first appears in court, in Quebec. This may vary, and it is not absolutely essential that this disclosure take place on the first day. The Supreme Court of Canada stated ``prior to the accused's election''. That is the critical point. He must not only be informed of the charges, but also of the evidence that will be brought against him.
We agree that Bill C-13 provides for the obligation to translate the information. That is an improvement, and if I seemed to imply that there was nothing useful in this document, then I apologize, because that is not at all what I meant. It is a basic document, which will serve to define a number of things as the trial unfolds, and it is important that the defendant understand it, so it must be translated as necessary.
In my opinion, though, the defendant's rights to understand what will be used against him do not end there. We must go even further and provide, in law, the right to a type of disclosure of the evidence that will be translated in the language of the defendant, particularly what the Crown intends to produce at trial.
[English]
Senator Baker: Let us have some particulars here. When someone is called upon to select his or her mode of trial and plea, in Quebec, it is required, prior to plea, for a person to be given reasonable information so that the person will know the case that is against him or her.
What does it include? The information is a simple paragraph, normally, as to what the person did, where he or she did it, and what section of the Criminal Code was violated.
In Quebec, prior to plea, the individual must also be given the officer's notes, the continuation report, and the Crown attorney's case report, if there is one, to meet the requirement of reasonable knowledge of the case he or she has to meet.
Would you say the government should, in this particular clause, give the accused the same information as is required in the province of Quebec prior to plea in order that the person would know the case he or she has to meet and in order to meet the intent of this clause of this bill?
[Translation]
Mr. Belleau: You seem to think that only in Quebec do the defendants have a right to the disclosure of the evidence; however, that right applies throughout the country. The language aspect is a contentious issue in Quebec. The judges in that province did not grant the defendants' request for the translation of all of the evidence. This is not something that is common practice in Quebec.
In our opinion, there is a problem with clause 7. Let's say that we have a unilingual anglophone defendant in Quebec who does not understand French, and who only speaks English. All of the evidence is in French. How can he instruct his lawyer and direct his case if he cannot understand the evidence that will be used against him?
If the evidence is going to be provided only in French, a language that he does not understand, then he may as well not be given any evidence at all. It would be absolutely useless.
That is what we should be seeking to achieve, mainly, the possibility for the accused to be able to read and understand the charges that are brought against him. Also, under the provisions of clause 7 and in the interest of a full answer and defence, we must ensure that the evidence is disclosed in a form that the defendant can understand.
[English]
Senator Baker: We have a distinguished witness here who is very knowledgeable.
Throughout this bill, and throughout the existing law, the definition of the terms ``trial'' and ``to be tried'' has certainly changed over the years — and you have been a part of some of the changes. Under section 11(b) of the Charter, an individual has the right ``to be tried within a reasonable time'' — that is, from the time the individual is charged until sentencing.
Would you say that that should be the extent of the law, and not just the preliminary inquiry and the evidence of the trier of fact in the first instance?
[Translation]
Mr. Belleau: I agree. As soon as a defendant appears before the judge, he should be able to avail himself of the right to be tried in his own language. Often, the first stage involves determining whether or not he is entitled to a temporary release from custody. In my opinion, that is in keeping with the charter and with the bilingualism philosophy that underlies Canada's institutions.
We can still argue that currently, in law, the preliminary hearing begins with the appearance of the defendant, and all proceedings should take place in French. In my opinion, section 530.1 provides for a preliminary hearing in French. We can at least say that the proceedings upon the appearance of the defendant are covered by the provisions of Part XVII, which continue until sentencing because I believe that case law recognizes that a trial includes the sentencing phase. It would be absurd to limit the provision to the phase that involves the jury and to allow the sentencing judge to radically change the rules of the game and begin to speak the other official language while ignoring everything that had come before. Both the intention and the application of these provisions must be compatible.
Senator Joyal: Did you have an opportunity to appear before the House of Commons committee when it was studying Bill C-23 — which preceded the current bill?
Ms. Dufour: No, unfortunately not. For reasons related to our internal management, the Barreau du Québec was not able to appear when the committee studied Bill C-23.
Senator Joyal: So you did not have an opportunity to discuss the language of trial provisions with members from the other place?
Ms. Dufour: Unfortunately, no.
Mr. Belleau: It is not because we were not given the opportunity to do so, but we did not.
Senator Joyal: It was not a criticism, it was simply to help us understand all of the implications of this bill.
I understand when Mr. Rémillard says that, in some ways, the bill can be an improvement in some provinces — with the exception of New Brunswick. As for Quebec, since this province is subject to section 133 of the Constitution and the Charter, I understand why there might have been interpretations that have broadened the scope of the right of the defendant to be tried in the language of his choice. Moreover, as to the current provisions of the bill, even if they do represent an improvement in some areas — according to what Mr. Rémillard has said — the fact remains that if they were to be followed explicitly in Quebec, it would be a step backward when compared to what Quebec currently provides to the defendant, including the ability to mount a defence in the language of his choice. Of course, I am referring to the anglophone minority in Quebec.
Mr. Belleau: That is correct. The positions expressed by Mr. Rémillard and the Barreau du Québec — the association that I represent — illustrate the difference in the treatment that is afforded to a defendant depending on his location. It is obvious that in Quebec, section 133 does apply, but, historically, what has been provided has gone beyond the requirements of the constitutional guarantee. Legal services in both languages are provided almost automatically, except in certain jurisdictions where very few people speak English. But even in those cases, it is possible to have the file transferred to Montreal, to Quebec City, or to another district where the services can be provided.
What I find surprising is that Mr. Rémillard comes here and says: ``Congratulations! You are helping to improve the lot of francophone minorities outside Quebec.'' And then we reply: ``If you go ahead with this, you will be jeopardizing the rights of the anglophone minority in Quebec.'' That limits the scope of the legal guarantee that is provided by Quebec.
Senator Joyal: Is there not a contradiction of the interpretation given to section 133 and the scope of section 16 of the charter, which recognizes that Canada is a single entity when it comes to criminal law? Since it is a federal responsibility, and the Criminal Code is also a federal responsibility, as is the appointment of judges, then it follows that Parliament's responsibility to provide the accused with a trial in the language of his choice belongs first and foremost to the Canadian government. What Quebec has done is to provide accommodations that go beyond the Canadian government's interpretation of its constitutional responsibility to provide a defendant with a trial in the language of his choice. Is that an accurate description of the situation?
Mr. Belleau: You are correct. We can refer back to the trilogy known as MacDonald, Société des Acadiens du Nouveau-Brunswick and Bilodeau, where Justice Betz wrote that the right provided for by the Constitution is the right to speak in the language of one's choice. That does not mean, however, that one has the right to be understood. That was the philosophy that applied until the day when the Supreme Court of Canada, in 1999, brought down the Beaulac decision which gave a much broader interpretation of language rights. Justice Bastarache, in writing about language rights, states that the Beaulac decision shed new light on the interpretation of language rights in the trilogy of decisions that were handed down in the 1980s.
Of course, what Quebec provides goes slightly beyond the constitutional requirement. Language guarantees are the responsibility of Parliament, that is a fact. A court in another province will not compensate in the way that Quebec has, for historical reasons, as I explained earlier. The fear is that elsewhere, there is no such will or no necessity, for historical reasons, to provide a literally absolute equality of rights when it comes to language. Parliament must intervene to enshrine and create the rule, and force the courts to apply these rules.
Senator Joyal: In what you have said about the laying of information and the notice, are you suggesting that we broaden the definition to include other aspects of the trial? For example, to use your terms, when you say that the evidence should be provided in a form that will be understood by the defendant, and that even though it is not necessary to translate everything, the accused must be able to understand the essential aspects of the trial, and should at least have a summary of the main evidence to be used against him. In other words, if you say that you will be tried in your own language but if you are shown documents or evidence that you do not understand, then, in my opinion, that is not a fair trial according to the meaning that is implied in the principles of linguistic equality.
Mr. Belleau: You are absolutely right. The trial itself may appear to be absolutely fair and to respect the defendant's rights. But there is a preparation phase that comes before the trial itself. And during the trial, it will not always be possible to see if the defendant has been deprived of his right to mount a full defence. It is all very well for the judge to provide him with every possible legal guarantee, but if he is not given the tools that he needs, if he has not had access to the information that is key in the trial, then he cannot mount an adequate defence.
The suggestion of the Barreau is that some serious thought be given to coming up with legislation that would define this right. The way things are now, depending on which jurisdiction you are in, there is not a lot of consistency in decisions on the right to translation of disclosure of the evidence.
The Chair: I would just like to point out that there are four other senators on the list.
[English]
Senator Joyal: In English, the expression is: You are damned if you do and damned if you do not.
[Translation]
What could be done to make sure that the rights of the anglophone minority, as they have been interpreted by the courts, are protected, and that these amendments are not used in Quebec, particularly if someone some day wanted to apply them to the letter, and tell the anglophone minority to go back to the Parliament of Canada because it is not our fault, your right to be heard in English is diminished, the Parliament of Canada is to blame. I have already seen this argument used in Quebec by provincial governments in language disputes you must remember, Mr. Belleau.
Mr. Belleau: You raise a good point. I think that in practical terms, given that Quebec's institutions have developed this way and it is so deeply entrenched, there is very little danger of the rights of the anglophone minority being eroded in any significant way. Except that once it starts to dawn on crown prosecutors that there are costs involved, will they look at what is happening in other provinces and stop insisting on bilingual counsel and stop recruiting anglophone judges, etc.? There is reason to fear a gradual deterioration, and it could happen in the other provinces too.
Mr. Rémillard: We share that concern. Whether you are a francophone inside or outside Quebec, you want to advance language rights. And you always want to do this materially, so as to avoid moving forward in one way and backward in another. You have to be very sensitive to that.
The Supreme Court of Canada has said that language rights are always to be given a broad and liberal interpretation. That was the ruling in Beaulac. That is the starting point when interpreting language rights. That will be applied if there is any ambiguity in Quebec or in another province. These principles will guide the interpretation of any legislation, including the Criminal Code.
I am not saying that this is the entire background to the issue of language rights. There is also Bilodeau, the well- known trilogy involving a very restrictive interpretation of language rights, including section 133, section 23 in Manitoba, which is the same or very similar. Beaulac had to do with section 530 of the Criminal Code, and it was a trial in British Columbia; the issue was the interpretation of all rights, not just constitutional rights, but a broad and liberal interpretation of all language rights in order to promote linguistic minorities. That means in Quebec and outside Quebec. I wanted to spell that out, because it is important to know.
The Chair: Thank you, Mr. Rémillard.
[English]
Senator Andreychuk: That intervention was helpful in shortening what I was going to ask.
While there is a broad federal responsibility on language, there is also a broad federal responsibility on criminal law. We have always struggled with the issue of justice and bringing a fair trial to the accused. There are regional disparities because provinces have the responsibility for the administration of justice. The courts will continue to struggle with it; lawyers will continue to struggle with it; and parliamentarians will continue to struggle with it. That, in itself, does not trouble me. It is an ongoing issue with which we struggle.
If this bill were presented as if we had the answers and had completed the framework, I would then be worried, but it has been pointed out clearly that this is a step forward, balancing the needs across Canada. While we are talking about the will in Quebec, we must talk about capacity elsewhere, and perhaps some capacities within Quebec, such as in rural and far northern regions, and we have touched on Aboriginal issues in that whole context.
Mr. Belleau, you say that the standards or the capacities are higher in Quebec and that you fear this legislation may be a step backwards. What gives you that uncertainty? In each province I have studied, the national guidelines or the national laws are there and the administration of justice facilitates them. We have some greater capacities in some provinces on certain justice issues, and lesser capacities in others, and we have differences within provinces also.
Has there been any signal from anyone in the administration of justice in Quebec that they would take advantage of this bill to reduce the services offered and the capacities within the courts and how they are interpreting trials and go down to the standard we are trying to reach for other provinces, or will they continue to set the model?
[Translation]
Mr. Belleau: If you are asking me whether there has been any signal that the Province of Quebec does not intend to maintain a system with the capacity to provide these guarantees to its clients, there has been no such signal. It is just that governments tend to want to spend less and less on the administration of justice, and particularly on the administration of criminal justice, which is considered more of a nuisance than a good use of resources.
If it becomes a financial issue, as it always does in the end, and if the statutory provisions guaranteeing the rights grow weaker, then there is less of a need to respect those guarantees and less costly solutions can be chosen.
One of the reasons we feel there is a risk of a step backwards — if you take, for example, the amendment to section 530.1, which defines the language rights of the accused — is that once the accused gets an order to the effect that the trial is to be held in the language of the accused — under paragraphs (d) and (e) — the judge and the prosecutor have to speak the language of the accused. That is fundamental. If, under the new amendment, the judge and the prosecutor are entitled to speak both languages or another language, then that is a step backwards, in that the court and the prosecutor are no longer required to speak the language of the accused.
I think that is a clear step backwards when it comes to the rights the accused can assert in exercising the right to be tried in his or her language.
[English]
Senator Andreychuk: This could be the pitfall, and I agree with you. I have great confidence that the Quebec bar will be vigilant about monitoring this, and I hope the federal government will be monitoring that the steps it is taking are positive ones. There is no question that this is to urge other provinces, with their capacities, to fully comply.
If there is an unintended consequence — which you are pointing out — I would hope the government would step in quickly at either level and have a discussion about this and perhaps bring legislation forward.
Are you, therefore, cautioning us but in favour of this bill?
[Translation]
Mr. Belleau: If we had to approve any provisions, we would certainly approve a broadened provision that applied to all accused, not just unrepresented accused. As for the other provisions, there is the translation of the information or indictment, but apart from that, in our opinion, there is a danger that this will be interpreted as a step backwards. Because Parliament does not speak in vain, in a case where the court has to decide whether or not to order separate trials, for example, if the accused complained that the trial was not held in his or her language, the prosecution could argue that Parliament amended the law and allowed for the judge and prosecutor to speak English, thereby diminishing the rights. That means something in the legal world, it cannot be innocuous or inconsequential.
[English]
Senator Andreychuk: I am still waiting for the answer. Are you suggesting that we pass this bill, or are you suggesting that we do not?
Sorry, but I used to be a judge.
[Translation]
Mr. Belleau: We are certainly suggesting that provisions like the one that amends section 530.1 and the one that allows the judge to take into account the fact that the accused are to be tried together should not be passed.
[English]
Senator Andreychuk: I was going to try one more time.
The Chair: I think we got an answer.
Mr. Belleau: Maybe the translation is poor.
Senator Milne: Yesterday, when the minister appeared, I pointed out clause 37 of the bill. My question also applies to clause 39.
I have grave concerns about this. Clause 37 applies to probation orders and clause 39 applies to optional conditions and available fine options.
Subsections (a), (b), (c) and (d) of proposed section 734.2(1) — this comes under clause 39 — says that a court shall, to paraphrase, ``cause a copy of the order to be given...,'' ``explain the substance of sections...to the offender,'' ``cause an explanation...,'' and ``take reasonable measures to ensure that the offender understands the order and the explanations.''
Under clause 37, proposed new subsection 732.1(6) of the Criminal Code reads — and I quote:
For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.
Language almost identical to that is present in clause 39.
After the minister did not answer me and the Department of Justice officials who were witnesses did not satisfy my concerns, another Department of Justice official later said that this language is common in other places in the Criminal Code. It gives me great concern. It means that we could have somebody under a probation order not knowing what the probation order was. How could the person possibly comply with it? In the case of a fine, how would the person know the amount to be paid and learn what options existed for him or her to pay that fine?
Would you comment on this, and inform us as to whether this does, in fact, occur in other places throughout the Criminal Code.
[Translation]
Mr. Belleau: I think that language does, in fact, occur in other places, probably in terms of interim release, where there are conditions that can be imposed on an accused. The requirement is for the judge to make sure to cause a copy of the order to be given to the offender. There is a practical aspect to that, at least in Montreal, where I practice, and that is that the clerk draws up the document and causes it to be read to the accused, who signs it, and leaves it with a copy of the probation order. Of course, the clerk does not take the time to explain each and every clause and all of the conditions, but it is generally clear enough to the accused, who is bound by the content of the document in question. The reason, I think, for that wording is to somewhat lighten the court's workload. Some courtrooms deal with around 100 cases every day, and it is inconceivable for the judge to personally read the probation order to each and every client.
As a rule, I think this section is administered well. Subsection (6) in particular provides that the order is valid and the offender is bound by it even if there is a failure to comply with the requirements of subsection (5). The problem is that in the event of such a failure, if the offender is not properly informed, then the offender could complain that he or she was not given adequate information and tried to raise that as a defence.
In my experience, the way the court fulfils the requirement of informing the offender has not actually been a problem.
I am not sure I have answered much better than the officials from the Department of Justice.
[English]
Senator Milne: You have not really set my mind at ease. While this may work well in practice in Montreal, in Quebec City, in Toronto, I am informed that there are areas in Canada where there may not be a clerk of the court. It falls then to the judge to actually do it. Yesterday, the minister asked me if I was concerned about criminals running around the streets. I certainly am concerned if they do not know their probation orders. I come back to it: Is there any way this could be fixed?
[Translation]
Mr. Belleau: I am not sure it needs fixing.
[English]
Senator Milne: I may be the non-legal mind here, but when I read the language of these two clauses in this bill, red flags go up all over the place.
[Translation]
Mr. Belleau: Usually, the offender will always get a copy of the order and can read it. If the offender cannot read it, someone can read it to the offender. If the offender asks for an explanation, an explanation will be given. The police are aware of the conditions. If an offender on probation breaches a condition because of a misunderstanding, the police will have understood the conditions and will be in a position to do something about it.
[English]
Senator Milne: That is one of my concerns — that is, if the offender does not understand and the court does.
Senator Watt: First of all, I should say I am your neighbour; I am from Nunavik. I am operating on the outside of the two official languages; however, I will ensure that I speak in a way that can be understood by everyone.
Let me go back a bit. You might be familiar with the fact that Nunavik Inuit have a treaty with the Government of Canada and the Province of Quebec. The Government of Canada and the provincial government are obligated to provide services to my people. This is under the jurisdiction of the Province of Quebec.
As a result, we made an attempt to arrive at a funding formula. If it is a matter under the federal jurisdiction, the Government of Canada is obliged to provide 75 per cent of the funding required, the province, 25 per cent. If it is under provincial jurisdiction, the province's responsibility is 75 per cent, the federal government, 25 per cent. Depending on which level of government has jurisdiction, the funding formula is vice-versa. I hope I have been clear to this point?
I am not saying that this always works, because it is a very complicated issue. At times, we have to negotiate with two levels of government to get what is needed to provide services to the community.
In this particular bill, we are the minority of the minority. Yesterday and today, I was trying to figure out where I come in. Everything you are talking about is a concern for me, also.
Senator Andreychuk raised a point about the minority status of the Aboriginal people; specifically, I am speaking about the Inuit of Nunavik. The same could apply to the other areas, perhaps.
What is your opinion in regards to this particular draft of the Criminal Code? It does not categorically mention in any way a need to provide services to people who speak a language other than the two official languages. I am assuming that this bill can be understood to say: ``We, the Government of Canada, are not providing anything to the Province of Quebec to deal with language issues beyond the two official languages.'' Am I correct in that assumption?
Unlike the First Nations, we are full-fledged taxpayers; we pay more taxes than any other people in this country. I think I got my points across.
Could you provide me some answers on that? It bothers me, as a senator, to not know how I can act to protect the interests of my people.
The Chair: Do you think this bill diminishes Inuit rights, even if indirectly?
[Translation]
Mr. Belleau: It certainly does not improve them because there is no provision that promotes any particular status for the Inuit language, Inuktituk, which has the same status as a foreign language, but that is the way it is under the Criminal Code currently. I think you have brought up a fascinating issue. As Senator Joyal mentioned, Inuktituk should be considered one of Canada's official languages. That is a political issue that I am not sure it is appropriate for me to express an opinion on, but I do understand. Your question has to do with whether or not the bill does anything for your group. I must say that on the face of it, there is not much in the bill that should reassure you.
[English]
Senator Watt: That is what I wanted.
[Translation]
Mr. Rémillard: Having a legal language is a very complex issue; the development of French common law in provinces outside Quebec went through all the difficulties of having a standardized legal language and the capacity to provide all of these services. It is a very interesting issue.
I went to Iqaluit a few years ago and this was discussed. Some of the experiences of common law in French could be applicable and could help you with your approach to the problem. The challenges are quite formidable, but less so for common law in French than in Inuktituk. There are all kinds of other challenges. It is a field in which Canada has some expertise that could be put to good use for other languages.
The Chair: Thank you very much. Senator Chaput, you have been very patient and we have very little time left.
Senator Chaput: I will be brief. My question was already asked by Senator Andreychuk, but I want to ask it again. As you know, I am from French Manitoba and I agree with what Mr. Rémillard said because of my situation as a double minority in Manitoba and in Canada.
I put the question to Mr. Belleau again. Did I understand correctly when you said that this bill could reduce or eliminate services in English to Quebec anglophones in this area?
Mr. Belleau: The argument we are making is that it could diminish the rights of the linguistic minority wherever it is located.
In Quebec, that would be anglophones; in English-speaking provinces, the rights of francophones would be jeopardized.
Senator Chaput: This bill is more positive for francophones outside Quebec then for anglophones in Quebec. That is what you are saying.
Mr. Belleau: I am not sure of that. No, that is not what I am saying.
Senator Chaput: Okay. I will leave it at that.
The Chair: We could obviously keep talking about this for hours. Thank you all for coming. It has been very interesting and helpful to the committee.
[English]
I would ask the next panel of witnesses to come to the table. They have been waiting patiently.
We have representatives before us of PartyGaming PLC, which suggests that the topic of this portion of the hearing will be different from that of the last portion.
Welcome to Mr. Mitchell Garber, Chief Executive Officer, Mr. Brahm M. Gelfand, Member, International Advisory Committee, and Mr. Norman Inkster, Member, International Advisory Committee.
As you know, our time has been compressed. We will ask you to make an opening statement. Please keep it as tight as you can, while of course conveying your central points, to leave time for us to put questions to you before we have to stop. There is never enough time in these committees.
Mitchell Garber, Chief Executive Officer, PartyGaming PLC: It is a pleasure to be here. I will condense my comments. As a Canadian living in Europe, even to wait to speak to you is a pleasure.
I will give a brief history. I am a Canadian lawyer, a member of the Quebec bar. PartyGaming PLC is a London Stock Exchange company, one of the largest in Europe, with offices in the United Kingdom, a licence in the European Union, offices in Gibraltar, in Tel Aviv, Israel, in Sofia, Bulgaria, and in Hyderabad, India.
PartyGaming PLC is a fairly large company, with close to 1,500 employees. Again, we are licensed by the European Union. We are traded publicly on the London Stock Exchange, and owned by the likes of Fidelity, Merrill Lynch and other such investors. We run a very compliant Internet gaming company. We have strong software controls, external auditors, internal auditors, an anti-money-laundering officer and policies, and are very responsible in terms of problem gaming.
I have had the opportunity to speak to committees in the House of Lords in the United Kingdom, as well as with the Minister of International Trade for the European Union, Mr. Peter Mendelssohn, in Brussels, in the last several months, so it is not new to me to be talking to governments about the potential for extraterritorial application of laws as concerns the Internet and Internet gaming.
My goal here is to discuss Bill C-13, and clause 5, in particular. Frankly, the goal is to seek clarity, to ensure that if Parliament is to make an amendment, and is to make this amendment, the intent of the amendment is not subject to interpretation, is not ambiguous, and that it is clear exactly to whom and to what the amendment is meant to apply.
Clause 5 of the bill replaces section 202(1)(i). In the words of Justice Minister Nicholson, it is a technical amendment. Understandably, laws need to be technically amended, to adjust for changes in business, society and technology. Section 202 of the Criminal Code has historically been interpreted as a local law, to be applied against businesses and people doing business inside Canada.
However, open-ended new language alludes to the Internet without saying ``Internet'' specifically. The Internet creates complexities, so that if the intent is still inside Canada, it should say so and not leave any ambiguity about the potential extraterritorial application to EU-licensed, London Stock Exchange-listed companies such as PartyGaming.
I have heard some testimony about bookies. Is this about sports betting, bingo or poker? All of these things are important for companies such as ours to know. We do not have business operations in Canada. We do have Canadian customers, however. It is important to our company to know whether the intention of Canadian law is to stop our business, is to regulate our business, or is to apply to businesses that are doing business inside Canada.
With the Internet being alluded to as part of the language change, we need to understand what exactly the intention of the legislators is in terms of the applicability of this new language.
In my view, it would be irresponsible to pass the legislation unless the intent were clear. If it is meant to apply to companies such as ours, then please let the legislation read that way. If it is meant to apply to companies inside Canada, let the legislation read that way. If it is meant to apply to sports betting, let the legislation read that way.
As such, we do have some suggestions for the Senate today, but for the most part we are relying on your duty as being the part of government that has sober second thought to look at this language and understand that all we are asking for is clarity one way or the other. Certainly, I have a preference on which side I would like the clarity to fall, but clarity is my goal.
To my left is Mr. Gelfand, a well-regarded and experienced corporate commercial lawyer here in Canada, based in Montreal.
Mr. Inkster does not need much introduction. He is the former commissioner of the RCMP and head of Interpol. He has had much involvement in gaming and regulated licensed gaming worldwide and is helpful to our advisory committee as well.
Mr. Gelfand will make a few comments about a memo he has circulated, and then Mr. Inkster may wish to say a few words. I leave it to you to ask questions and inspire debate and discussion.
Brahm M. Gelfand, Member, International Advisory Committee, PartyGaming PLC: With respect to the memorandum, which members should now have, I shall refer to the headings of each paragraph, to bring to your attention our concerns with respect to the amendment.
As Mr. Garber pointed out, our search here is for clarity as to the intent behind the bill. As you will see from the first page of the memo, our first question is this: ``Are the CC provisions regarding gambling and betting to continue applying solely to Canadian residents?'' The fact that you eliminate what has been in section 201 before and now leave any message in the open obviously refers to the Internet. The Internet is something completely new, ladies and gentlemen, to all of us in the way that it has such global reach and application. When a piece of legislation is enacted or amended, it becomes of fundamental importance to us to know exactly what is the effect of this amendment.
Is it supposed to affect only those who are in Canada, or is it supposed to affect a company such as PartyGaming PLC, which carries on business offshore, is regulated, licensed and restricted? If it has a long-arm effect, does that mean an executive of an offshore corporation that is legally constituted and properly licensed who is coming into Canada will be arrested and charged with a criminal offence?
Are we having the type of extraterritorial legislation that would emulate that of our neighbour to the south? They have passed various pieces of legislation that prohibit Canadians, for example, from selling goods to Cuba. You may all recall when Ford Motor Company in the U.S. blocked to Cuba the sale by a subsidiary of 900 trucks because of the Helms-Burton Act.
We are trying to get from the committee its impression of this bill and to find out whether the committee believes the bill is ambiguous. Also, does this committee believe there should be some clarification insofar as its intent is concerned? Regarding criminal legislation, our courts will have to decide whether the legislators intended this piece of legislation to apply to offshore corporations.
There have been cases in Canada dealing with this issue. As an example, there is the R v. Starnet Communications International Inc. case, as well as the Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers case. It is all documented in our brief.
When discussing Internet gambling, I want to bring home the message that we do have Internet gambling; we permit parimutuel gambling in Canada. The United States blocked gaming with their laws. However, the WTO, on behalf of Antigua and Barbuda, took a huge action against the United States on the basis of discriminatory procedures. The WTO said, ``You have parimutuel betting in the United States and are discriminating against others from using online gambling. You cannot do that.'' As Mr. Garber will tell you, the EU will decide what they will claim in damages from the United States. It could be in the amount of $80 billion to $90 billion.
There is the law of unintended consequences, which is what we are getting at here. If Bill C-13 is passed, no one around this table will know if an aggressive prosecutor in Canada wants to take that piece of legislation and, using it, ``go to the mat'' with someone. That is a possibility. We do not want that to happen.
I do not think Canada is in a position of wishing to have its legislation deemed extraterritorial. We have attached to this document a summary of a 100-plus page paper prepared by some professors at Dalhousie University. In our summary, we have tried to extrapolate some of the positions and effects of extraterritorial legislation. The effects need to be considered.
It is one thing to enact something and it is another to enforce it. If we have criminal legislation that cannot be enforced because the people or institutions are not in Canada, it will be a sad moment for Canadian criminal justice.
Also, online gambling is something that other jurisdictions have looked at quite carefully. Many have decided that they will enact legislation of a different sort. I would refer you to the United Kingdom. The United Kingdom has just recently enacted its gambling act that permits online gambling. However, they have done something very clever. They have developed a system of regulation that says, ``If company X headquartered in Gibraltar is fully regulated and we have investigated them, we will recognize their rules and we will permit those companies to have an established business operation in our country.'' That creates a regulated regime of online entertainment, whether it is poker or other gambling games. Both parties benefit from it because the state that allows it has a regulated regime, and there are tax revenues that fall from that. You have a system that works on an international level.
We do not think this amendment is merely technical. We believe not enough forethought has been given to the consequences of passing the legislation as is. We do not think it would be fair to pass this legislation and then leave it up to some court to decide that it is long-arm legislation and, thus, they can prosecute these people. Following that, it would go from the provincial court to the Court of Appeal, to the Supreme Court of Canada to test this legislation.
We would prefer to see some clarity brought to it by an amendment to say that it has to be a message sent in Canada. Alternatively, there must be some clarification in the introductory language that this legislation is meant to apply to those messages in Canada. This is absolutely necessary to avoid the type of confusion that can result from the present amendment that we have before us.
Norman Inkster, Member, International Advisory Committee, PartyGaming PLC: Thank you very much for the opportunity to be here. You may be surprised to find a former commissioner of the RCMP working closely with people in the gaming industry.
Senator Bryden: Nothing surprises us.
Mr. Inkster: Let me say that, before I agreed to work as an adviser for PartyGaming, I had to reassure myself they were the gold standard. There is nothing inherently wrong with gambling or gaming, but it does attract bad people. That is why regulation is so important; not just regulation, but crystal-clear regulation. I am here to reinforce the encouragement of my colleagues that amendments could be made to make the intent of the law clear. That should be considered.
As a former police officer, I always look at a law in terms of whether it can be enforced. I ask myself: Would we have a law on the books that was impossible to enforce, even if it passed unamended? That is an important consideration as we look to put new laws in place. What is the likelihood that one could enforce it, particularly where it deals with personal choice and behaviour? Also of concern is where the offence would occur in all of these issues. I am sure all the legal minds in the room would have wrestled with this already.
I am here to encourage clarity, if there is an opportunity to do so. I am here with Mr. Garber because I am in favour of the law — it is my background. We just want clarity. We will abide by whatever law Canada decides to create.
The Chair: Before I go to questions from committee members, may I ask you, Mr. Garber, whether you or any of your representatives appeared before the House of Commons committee that studied this bill or its predecessor?
Mr. Garber: No, I have not appeared before any Canadian governmental agencies.
The Chair: This is the first time, to your knowledge, that this representation or point of view has been brought forward?
Mr. Garber: I had a private meeting with Mr. Inkster and Mr. Gelfand with the Chief of Staff of Mr. Nicholson's office about two or three months ago. That meeting regarded general feeling in Canada about Internet gaming and the chances for regulation and taxation. A meeting in the Ministry of Revenue was similarly focused, but it was not about Bill C-23 or Bill C-13.
Senator Oliver: I was interested in your reference to the research done by Dalhousie Law School. You say that it is a 100-page paper that is not attached, but that you have done a two-page summary. You have also indicated that, if the bill is passed, you will certainly obey the law. Also, prima facie, what you are looking for is a bit of clarification to ensure this is not extraterritorial or go beyond a national law.
In your summary, you say that — and I am quoting — ``one must not forget that such legislation,'' and we are talking about extraterritorial legislation here, ``does essentially violate international law.'' The authors of the Dalhousie paper say that the international position on this issue is rather simple: They say, and I quote: ``...one state's exercise of sovereign power cannot infringe upon the sovereignty of another state or states.''
This bill was not designed and drafted to impinge upon the sovereign rights of another state. As such, I do not think any further clarification is needed because the law is clear. If, in fact, the bill talks about using communications of any kind, they are referring to the fact we are communicating in different ways each decade. At one time, we did not communicate did by fax; we once communicated by telex. Now we communicate using Blackberries and other things. The law is trying to keep pace with what is happening in telecommunications. That has nothing to do with extraterritoriality.
Mr. Garber: I am glad you said that, Senator Oliver. That is the way we would interpret the proposed amendment and the legislation. The former language was fairly simple to interpret; because it was mail or written communication it was delivered physically. The Internet brings about the opportunity to interpret differently the method of delivery or where the delivery is actually taking place.
There will come a day when the senators at this table may no longer be around the table. Law students will be studying case law to determine the intent of the legislators or to find out what Mr. Nicholson and Senator Oliver said in a committee hearing. You have an opportunity today to insert the words ``in Canada'' or something similar. You already have on the books a paragraph that deals with having physical presence in Canada, servers in Canada and equipment and apparatus in Canada. Therefore, I am extremely pleased with your position.
While I trust it is the position of the Canadian government today, I am not convinced that, for example, an RCMP officer in Saskatchewan could not choose to interpret it differently. A misinterpretation could create a two- or three- year fight in criminal court, incurring tens of millions of dollars in legal expenses, in order to show that Senator Oliver's interpretation of the language was the correct one. My only point is on the matter of clarity.
Senator Oliver: One of the things Senate committees can do, and sometimes will do, is attach commentary or statements when they report back to the chamber. It may well be that there could be such a statement, saying, just for purposes of clarification, what we understand this to be. This is another procedure that can be invoked without going the route of a major amendment.
Mr. Garber: If I could transcribe your first comments and put them in a note, that would be perfect.
Senator Oliver: My first comments came from a Dalhousie University brief.
Senator Milne: Gentlemen, I wish you had been here yesterday when the minister was before us. One of the officials who appeared along with him, I believe, gave that kind of guarantee or comfort to the committee in answer to Senator Baker's questions.
I must tell you that this committee is not accustomed to being faced with a series of questions to answer. Normally, we ask the questions, and the witnesses get to answer them. I would suggest that, perhaps, you should ask Mr. Inkster to answer some of these questions more properly.
I appreciate the fact that you are here before us, and I must agree with Senator Oliver: Perhaps a preamble or a comment added to this bill would satisfy some of these problems that you foresee. I do not intend to read a 100-page brief from Dalhousie University.
The Chair: This whole field is very new to me. I am not a gambler, nor am I an Internet expert, let me tell you. What you are asking for is clarity, and you are suggesting an amendment. I am not saying that I am endorsing an amendment. I am trying to be sure I understand what it is you seek if clarity is to be provided, via an amendment as distinct from ministerial statements, senatorial statements or what have you.
Are you suggesting that, an appropriate amendment, if that route were chosen, would be, for example, an amendment in this paragraph: ``...wilfully and knowingly sends, transmits, delivers or receives in Canada any message...''? When you suggest the ``in Canada,'' is that where you propose putting them in?
Mr. Garber: Yes.
The Chair: Is the effect of that to say that you could not have any customers in Canada?
Mr. Garber: No, the effect of that would be to put an onus on the party delivering the messages. Let me start by saying that it is presumptuous for me to ask for an amendment. There is a variety of choices. Senator Oliver came up with one that I am sure should be considered.
The current legislation has been interpreted consistently for many years as being businesses conducted inside Canada. It has nothing to do with the consumer. So if, for example, I housed gambling servers in my house in Canada, if I had a marketing team in Canada and a phone bank in Canada, I would be operating a gaming business over the Internet from Canada. That is what the legislators, historically, have meant to cover by paragraph 202(1)(i). By adding the Internet, I think it is important to make clear that what is meant to be effected here are companies or individuals operating businesses from inside Canada, not consumers receiving emails inside Canada.
The Chair: Then you have difficulties, I assume, with the words ``or receives.'' This bill would —
Senator Milne: This would capture ISPs.
The Chair: I would think so, but it would also capture customers, would it not?
Mr. Garber: I think it is problematic. All of Canada's newspapers publish odds on National Football League and National Hockey League games. Therefore, they would be transmitting information in some way that could be used for sports betting and could be captured under the current language. ISPs in Canada facilitate your ability to surf the Internet, and therefore find yourself at PartyGaming or elsewhere, and could be captured under the law. As a Canadian and a lawyer, I believe that was not the legislators' intent. I think we need to, either by way of a note or language, find a way to be specific that the intention is not to include people who are not making money from this business, who are simply intermediaries such as an ISP on an information highway.
It needs to be clear that the legislators mean to prohibit people from operating unlicensed online gaming operations from inside Canada. That is clearly against the law today, but I think it needs to be clarified only because the Internet did not exist when paragraph 202 was first written into the Criminal Code.
The Chair: I think my mind is now clearer.
Mr. Garber: Sorry for the long answer.
The Chair: Clarity is a good thing. Are there other questions?
Senator Bryden: I wanted to make a comment. There was a reference from Senator Milne saying it is too bad you did not hear the answer given by the minister yesterday. The answer is, of course, recorded and can be looked up. I do not know if the Blues are out yet.
The Chair: The Blues should be out by now and are publicly available. We have undertaken to provide you with copies of yesterday's proceedings.
Senator Baker: Senator Oliver, who introduced this bill into the Senate and who speaks on behalf of the Government of Canada in the introduction of the bill, is matched with the minister in their interpretations and explanations of the bill. Senator Oliver has suggested an interesting avenue in which, perhaps, this could be addressed. Perhaps that is what we should consider, unless another committee member wishes to amend the bill if there is not some accommodation made in the explanatory directions given to this bill.
Madam Chair, in the bill's Summary, the following is said: ``This enactment amends the description of the offence of conveying information...'' That is very broad and vague. As Senator Oliver has said, it should not pass as such. Some explanatory note needs to be made, if not an amendment.
I am very concerned about this. It is far too broad and incorporates things that should not be brought into play, such as Internet service providers and the invasion of our privacy. It should not be allowed to stand. Perhaps Senator Oliver has come up with an idea that may satisfy those of us who are concerned.
The Chair: I expect this will be part of our discussions when we get to the stage of clause-by-clause consideration of this bill.
Senator Baker: It certainly will.
Senator Joyal: How do online casinos fit into this section of the code? This committee previously studied Senator Lapointe's private member's bill on video poker. We were told that the future of betting will take place more on the Internet than anything else and that there will be many more people betting online than at a race track or any other location.
How do you understand that phenomenon — which is contemporary — within the scope of this provision of the Criminal Code as proposed to be amended?
Mr. Garber: It is difficult to talk game by game. I was a private practice attorney for MGM, Harrods, Trump, the City of Windsor and the Quebec government when they started getting into casinos, before the Internet came around. It became clear to me, as it is to you, that the Internet will only grow from here and gives more people an opportunity to play, if that is what they want to do. Poker has become an enormous phenomenon. It makes up 80 per cent of my company's business. Casino is the second most popular set of games, that is, people who play slot machines and roulette.
As long as the software is fair, the companies are regulated, and meet a gold standard, the popular games will grow and be adopted and played by people.
The issue here becomes one of consumer protection, not so much one of criminal law. This bill, and the note I hope to see suggested by Senator Oliver, will clearly not have extraterritorial effect. However, the Canadian government needs to protect its people and make sure that the consumer protection laws are taken into consideration so that companies with unfair software or who deal unfairly with consumers in Canada are prevented from doing so.
I come here on behalf of gold-standard regulated companies. These games will certainly grow, and as long as companies like ours are able to offer them, the Canadian government can have confidence that consumers will be well and fairly treated.
Senator Joyal: Mr. Inkster, based on your past experience with the RCMP, how do you see that phenomenon developing and how do we make it easier for the police forces to monitor and prevent it from becoming another loophole?
Mr. Inkster: We need to be concerned about the impact of gaming, especially on the younger generation. We hear about problem gamblers and about young people who are under the age limit participating in these events. In the case of PartyGaming, I was able to reassure myself that in both instances they have software that will identify the problem gambler and identify underage players. To the extent that involves law enforcement, I am convinced that PartyGaming will assist the police in that respect.
How far will this go and what impact will it have on the casinos and all of those other things in which Canada is so heavily involved? It has and will have an impact on the people who physically go and play. Increasing numbers of people will want to play from the comforts of their own home.
From a law enforcement perspective regarding the Internet, where did the offence occur, assuming there was an offence and who has the authority to investigate the offence? Even if the offence was known to occur in Canada, and it was known to have Canadians participate in it, but they did it from their own home, how will the police know that and enforce the law?
Certain issues around gaming and the Internet were not contemplated in the current law, as written, will need to be examined in much more depth in the future.
The United Kingdom, a jurisdiction to which we often look for guidance and experience, is one that has managed to regulate this industry in a very strict way. The U.K. Gaming Commission has taken this seriously and has laws that are applicable and effective.
The two key issues are: Having a regulatory regime that addresses the problem; and, applying that regime with vigour and enthusiasm. That is the best way to protect Canadians.
Passing a law that made Internet gaming in all its forms illegal would do nothing other than push it underground; it would not stop people from doing it. With passage of the American law, there are as many Americans gambling today as before the law. The only difference is the government is not regulating it and not realizing any revenues from that activity.
There are two questions for government: How do we regulate it and how do we collect revenues? Those issues need to be addressed seriously and in a broader context.
The Chair: This bill is an interim measure and what you raise, Mr. Inkster, is a desirable longer-term approach and a system of regulation beyond the purview of this bill. Whatever we do here is a holding action.
Mr. Garber: Work was started before this bill was proposed. We met with the Chief of Staff at Mr. Nicholson's office and the Minister of Revenue to inform them of this. We have helped governments establish a regulatory framework to protect its consumers and a tax framework to collect deserved revenues.
That job has begun. There is a lot of work ahead of us. I intend to participate in that work, as does Mr. Inkster and Mr. Gelfand. It is not an interim measure, but an evolutionary process, and the next phase will be how Canada will make money from Internet gaming and ensure that there is a regulatory framework that makes sense.
Senator Joyal: That is exactly the objective for a comprehensive approach to this issue.
Mr. Inkster: The proposed amendment or point to accompany the bill back to the House is an important one in the short term. I would encourage Parliament to look at the whole issue of Internet gaming in a broader way and have a debate with Canadians about that subject, bearing in mind that it is an issue we will not stop. The question becomes how we control it.
The Chair: Gentlemen, thank you very much.
Our next meeting will be next Wednesday, December 5, 2007, in this room, at 4 p.m.
The committee adjourned.