Thank you, Mr. Chair.

Members of the committee, I want to begin by thanking you for the opportunity to speak to you.

I have been a lawyer for 10 years and I exclusively practise criminal law, on the defence side. The Criminal Code and certain sections of the Canada Evidence Act are therefore part of my daily life. Therefore, I will focus most of my remarks on these two acts, but I will make a brief incursion into the Security of Information Act to talk about some of the provisions you wish to add to the Criminal Code.

First, I have several observations to make with respect to the proposed amendments to the sabotage offence, which is currently dealt with in section 52 of the Criminal Code. Some efforts are commendable, but many others are alarming.

First of all, as far as I know, the offence of sabotage does not exist in Great Britain. In the United States, federal laws restrict the scope of the offence. In New Zealand, sabotage is also a much more limited offence than what is intended by Bill C‑70.

Subsection 52(1) of the current Criminal Code defines the offence of sabotage as “a prohibited act for a purpose prejudicial to …”. In all transparency, I say to the committee that I think the way this paragraph is formulated right now is incomprehensible. The proposed amendment is therefore very commendable and welcomed by the law clerks, because the proposed wording is much clearer. In addition, proposed subsection 52(5), which provides an exception for certain groups, is an advantage compared to the current version of the Criminal Code. However, I feel the clarification is too restrictive.

The proposed new subsections 52(1) and 52(2) are much more problematic.

Subsection 52(1) that the bill proposes to add to the Criminal Code creates a new sabotage offence in relation to essential infrastructure. First of all, I want to say that this is far too broad. Under proposed subsection 52.1(1)(c), the offence applies to anyone who intends to “cause a serious risk to the health or safety of the public or any segment of the public”. However, the concept of “segment of the public” could be interpreted as meaning two individuals. So it wouldn't have to be the majority of the population. In addition, the bill is far too broad when it talks about a serious risk to safety. I say this because the broader the provisions are, the less they will stand up to the test of the courts as far as constitutionality and Canadian criminal law are concerned.

Next, proposed subsection 52.1(2) defines essential infrastructure. However, I'd like to point out that this definition includes facilities or systems belonging to private companies. If we push the interpretation of this proposed subsection, the facilities or systems of a private video game company like Ubisoft could be considered essential infrastructure, since they are information and communication technology infrastructure. So you're not only targeting public entities, and even companies owned by the federal government or a provincial government, but also private companies, which is very problematic.

Furthermore, the concept of economic well-being, which is added in proposed subsection 52.1(2), is also problematic because it's very broad. It's not restrictive enough and, to my knowledge, it's not defined anywhere in the Criminal Code.

In addition, the safeguard that's added by proposed subsection 52.1(5), which excludes from the definition of the offence acts committed in the course of advocacy, protest or dissent, is not sufficiently restrictive, because it's conditional on the lack of intent to cause any of the harms referred to in proposed paragraphs 52.1(1)(a) to (c). In New Zealand, for example, the exception applies purely and simply to acts committed as part of a protest or as part of a claim, with no conditions attached. Proposed subsection 52.1(5) could lead the courts to interpret it very broadly, even speculatively, in certain situations.

Another thing I note in the proposed provisions is the concept of mischief. The offence of mischief already exists in section 430 of the Criminal Code. However, you want to include in these new provisions almost any type of mischief committed for one of the purposes intended. As a result, mischief will become an even more serious offence, with a maximum sentence of 10 years' imprisonment, rather than two years, or five or 10 years in some cases. You want to make that offence much more serious.

As for proposed section 52.2, there are some issues. I'm thinking in particular of the definition of “device” in proposed subsection 52.2(3). The term “device” is not limited to computer programs. This term is defined in a number of places in the Criminal Code, and the definition includes many more things than computer devices. Devices can be explosives or weapons, for example. That could be a problem in court.