Hon. Tommy Banks:

Honourable senators, the objects of Bill C-6 are laudable, as Senator Day mentioned in his opening remarks on the bill. The questions that I have about the bill, some of which have been addressed by Senator Day, are not about the objects of the bill but, rather, about the processes that it proposes to attain those objects.

Some honourable senators believe that government ought to be less intrusive of personal rights and ought to be more careful of approving of individual rights in some circumstances. Senator Day referred to some of those things, and I had the pleasure yesterday of a briefing with officials from the Department of Justice, both of which have made me realize that it is one thing for us to sit here and make law; it is another thing to apply and administer the law. In making the law that others must apply and administer, we must be careful to strive, as we always do, for the balance between the larger public right and the rights of individual Canadians and their enterprises. We must ensure that the fulcrum is placed in the correct perspective. We must ensure that the public interest in the present bill does not trample on the interests of individual Canadians or of their enterprises.

I call to honourable senators' attention some of the provisions of this bill, some of which have already been referred to by Senator Day, in the hope that honourable senators will find them interesting, as I do in my naïveté. I hope that these provisions will be addressed by the committee to which I hope the bill will be referred for study, and I hope that some of the questions can be answered and some of the concerns allayed.

In the preamble, paragraph 8 says something novel to me. I have not seen this before. It says that the Parliament of Canada, along with the Government of Canada, "enacts." I have not heard that language before and I am not sure whether there are any implications.

Clause 15 says that "The minister may disclose" confidential business information "to a person or a government . . . without the consent of" the person whose property it is. Clause 16 says that may happen, "if the person to whom or government to which the information may be disclosed agrees in writing to maintain the confidentiality" of that confidential business information.

I am interested in knowing the extent to which we can rely upon that undertaking.

Clause 18 says that "The Minister shall decide on the number of inspectors," and that he or she "may designate an individual as an inspector." However, there are no qualifications for such inspectors set out in this bill. When, in other legislation, persons other than peace officers, in the normal sense of the word, are empowered to do some of the things that are included in this bill, we have an assurance, on the basis of who those persons are, of the qualifications that they have. When a policeman is empowered to enter places and to ask for identification, and to seize things, we know that the policeman has graduated from depot, or has received training to properly exercise that authority. The same thing is true of a fisheries officer or a park warden. There is no set of criteria of which I am aware for the proper discharge by these inspectors of the powers of investigation, intrusion, and seizure that they have, under the proposed bill. There may be some that are not contained in the bill.

Clause 20 says that an inspector — the kind to which I have been referring — may enter a store or a factory, without a warrant, and without any authority other than that that has been granted in this bill of having been appointed by the minister, and the inspector may in that place take and seize things. The inspector may demand that things be moved and stored at the expense of the owner. The inspector may take documents, including confidential business information.

I understand that in a store, or perhaps even in a factory, there is not a reasonable expectation of privacy. However, I am imagining an office of an enterprise that may operate three or four factories, or three or four distribution centres, or three or four stores in malls, for example. I think that in an office, there is a reasonable expectation of privacy. However, under this bill, an inspector can enter that office without a warrant. The inspector can require the person in charge to identify himself or herself to the satisfaction of the inspector, and the inspector can take and seize property. The inspector can turn on a computer and can take away documents that are in that computer and distribute them in the conditions that I described previously.

This situation may be okay. I may be naive in asking these questions, but I am not sure that it is okay. I think that if someone were to come into my business office, which I regard as private premises, if they are going to take things or demand that I identify myself to them to their satisfaction, I expect that they would be required to have a warrant, unless they were in hot pursuit or had some other authority to do those things. I do not think a police officer can go into a private business office and demand that someone in that office identify themselves to the satisfaction of the police officer.

This bill says that an inspector, under the act, can do those things. The inspector, with a reasonable suspicion of contravention of the act but without a warrant, may seize and detain, for any time — I repeat, any time — the materials, the stuff, the thing, the information that the inspector finds there. Furthermore, the inspector may order the owner or the person in charge to establish, as I said, their identity to the inspector's satisfaction, and the inspector may seize, move or store the seized property in another place at the expense of the owner. If an inspector believes on reasonable grounds that there is a contravention of the act or the regulations under the act, the inspector may order any measure that the inspector considers necessary to remedy the non-compliance and to take those measures herself or himself if the person does not follow the order. I repeat: The inspector can order any measure that the inspector deems necessary.

Such an order may be reviewed by a review officer upon application of the person who is the subject of the order, provided that the application is based on grounds that involve questions of law or a mixture of law and fact. However, then clause 34 says that an order continues to apply during a review. This provision appears to present a possible conflict. It appears that if the order continues to apply, then the measures ordered by the inspector may be undertaken by the inspector while the review is still in progress. Proposed regulations under the act must be laid before both Houses of Parliament. That is good. The minister shall take into account any report that is made on them by a committee of either house. That provision is good.

However, clause 36 says that a proposed regulation that has been laid before Parliament need not again be so laid prior to the making of the regulation, whether it has been altered or not. Clause 37(3) says that under this act:

An interim order is exempt from the application of sections 3 and 9 of the Statutory Instruments Act.

Honourable senators, there is only one reason, as I have said before, again and again, for the inclusion of language like this in the law, and that is to escape parliamentary scrutiny. We have a Standing Joint Committee for the Scrutiny of Regulations, including statutory instruments, for a reason. The reason is to ensure that those instruments are compliant with the intent of the law. These provisions are in these acts to escape that scrutiny. I would be glad to hear of another reason for the inclusion of this kind of language in acts of Parliament, but no one has come up with one yet.

An interim order, as I said, is exempt from the act. This act provides fines of up to $5 million, or two years in jail — this offence is starting to sound serious — or both. It sounds like these offences are close to criminal prosecutions.

The next clause states:

39. If a person other than an individual —

— which is to say "a corporation."

— commits an offence under this Act, any of the —

— corporation's —

— directors, officers, agents or mandataries . . . is a party to the offence —

And there are some directors here, I think.

— and is liable on conviction to the punishment . . . even if the person —

That is to say the corporation.

— is not prosecuted for the offence.

40. In a prosecution for an offence . . . it is sufficient proof of the offence to establish that it was committed by any employee, agent or mandatary of the accused, even if the employee, agent or mandatary is not identified or is not prosecuted for the offence.

41. If an offence . . . is . . . continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

Five consecutive days could result in fines of $25 million in the aggregate or 10 years in jail in the aggregate. We should be careful when we are passing laws that contain those kinds of penalties.

Here is a train of thought to follow senators: If, as per clause 49, an individual authorized under the act to issue a notice of violation,

. . . believes on reasonable grounds that a person has committed a violation, the designated person may issue. . . a notice of violation. . .

Clause 50(1)(a) says that if the person named in the notice pays the prescribed penalty,

(a) they are deemed to have committed the violation . . .

Clause 50(2) says that instead of paying the penalty, the person may request to enter into a "compliance agreement with the minister."

Clause 51(2) says that if they do enter into such an agreement, the person is deemed to have committed the violation. However, clause 52(1) says that if the minister refuses to enter into a compliance agreement, then the person who made the request is liable to pay the fine, and then the person is deemed to have committed the violation.

Clause 52(3) says that if the person does not pay the fine, the person is deemed to have committed the violation.

If you are charged under this act, you are guilty, no matter what you do.

Clause 56 (1) is good, I think, but maybe I am being naive.

56. (1) A person named in a notice of violation does not have a defence by reason that the person

(a) exercised due diligence to prevent the violation; or

(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

Clause 62 says:

In any proceeding . . . a notice of violation purporting to be issued . . . is admissible in evidence without proof of the signature . . . of the person appearing to have signed the notice of violation.

Clause 64 says that orders made under this act are not statutory instruments under the Statutory Instruments Act.

See this duck? This is not a duck under the terms of this act.

Clause 66 says:

A document appearing to have been issued by the Minister . . . is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary is proof that the Minister became aware of the acts or omissions on that day.

Senators, I may be being naive, but there are some Canadians who think that some of these things are pushing the envelope in terms of where the fulcrum lies as regards the interests of individuals and their enterprises by comparison with the public interest. No one could possibly argue with measures that are taken to protect the public interest and the health and safety of Canadians. That is the object of this bill. My questions have to do with the means by which that is gone about. I suggest that at the very least we must at some point consider an amendment to this bill that provides, at the very least, that an entry by an inspector into a private office, during the course of which she or he may obtain information and take it away, should be subject to a warrant.

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