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Richard C. Owens
Executive Director
Centre for Innovation Law and Policy
Tel: (416) 978-7151
Fax: (416) 978-2648
richard.owens@utoronto.ca

September 17, 2002

The Honourable Pierre S. Pettigrew
Minister for International Trade
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario K1A 0G2

Dear Mr. Pettigrew:

I write in response to your letter to [a Probe International supporter] date stamped March 20, 2002 (“Letter”). A copy of the Letter is attached.

The Letter responds to inquiries relating to an article which I wrote about Bill C-31 amending the EDC Act. You state in your reply that I “clearly misunderstood the nature and purpose” of section 24.2 of Bill C-31. With respect to your views, it is not I, but the proponents of the bill, who misunderstood it. Of course [the writer’s] fears of criminalization of speech are justified! Only a blinkered view of the effects of such laws could deny that; let me explain why.

The Letter asserts that provisions of the kind of the relevant section of C-31 (being Section 24.2) are common in federal financial law. Even given a generous interpretation to whatever “federal financial law” might mean, your statement is not true. The only similar provision is that in legislation relating to the Business Development Bank of Canada (“BDC Act”). There is no other. While it is unfortunate that such a mistake was made in the BDC Act, it sets no useful precedent for other legislation.

You go on to say that the BDC Act provision has not yet been abused. But is not the business of government to enact legislation so poorly conceived and expressed that it is so readily capable of abuse.

I have shown this provision to law professors and senior lawyers; in all cases, it has provoked laughter and ridicule. When the legislative process issues such sloppy results, it brings parliament into disrepute.

Moreover, you state that somehow the provision is saved because a requirement of criminal intent is needed to support a conviction. Given that the substance (or actus reus) of the offence is merely to utter the name of the Export Development Corporation – indeed, even the letters standing for its name, EDC, to constitute a breech – there is no meaningful intent component to the offence.

You then go on to state that the police and criminal courts would not tolerate the misuse of such provisions. Surely it is inappropriate to substitute institutional optimism for clear words! Indeed, it is hardly unknown that police in criminal courts have enforced the apparent perversities of legislation. It is not their job to rewrite the laws, but to enforce them as written. Indeed, because such strong enforcement powers are available for Canadian laws, the laws need to be drafted carefully to avoid their invocation in the wrong circumstances.

The intent of legislation, honourable or otherwise, is often difficult to prove, especially as time passes. In any event, evidence of intent has limited force in a courtroom when it is at odds with the words of the law.

Laws have a strong in terrorem effect. Citizens, particularly representatives of typically under-funded public interest groups, are unlikely to risk betting on a guess as to intent, when their actions are damned by the words of the law. In a thousand quiet and unknown ways, speech is stifled.

In any event, we now find ourselves with another poor piece of legislation. I am merely trying as a solicitor to contribute my insights to help the Government of Canada. I have no interest in doing this personally and indeed it only costs me time and money to take the efforts I do to publicize these issues and to appear before the Senate as I did. To have such efforts casually dismissed discourages the dialogue government needs to have with its citizens in these complex times.

Yours faithfully,

Richard C. Owens

RCO:co

Encl.

Letter from Pierre Pettigrew, responding to a Probe International supporter’s inquiries concerning Bill C-31

March 20, 2002

Name and address withheld on request

Dear [Probe International Supporter]:

The Prime Minister forwarded to me a copy of your letter of January 10, 2002, concerning Bill C-31 and Export Development Canada (EDC).

The charge that a section of Bill C-31 “criminalizes” free speech originated in a newspaper article which appeared during consideration of the Bill by the Senate Committee on Banking, Trade and Commerce. With all due respect to the opinions expressed in this article, the author clearly misunderstood the nature and purpose of this section.

Provisions of this kind are common in federal financial law. They target dishonest commercial practices, not free speech. The Business Development Bank of Canada has an identical provision in its legislation, and there are similar provisions in other financial laws, some with much harsher penalties. They are not, and have never been abused in the manner the article describes. In fact, because they are criminal provisions, they imply the presence of criminal intent to support a charge. Furthermore, their enforcement rests with the police and the criminal courts, who would not tolerate their misuse. They have one purpose only, to prevent commercial dishonesty and fraud. They pose no threat to free speech or open democratic debate, and it is most unfortunate that they have been so misrepresented.

Bill C-31 has now passed the Senate, and was proclaimed into force on December 21, 2001. As amended, the Export Development Act now contains a legal requirement for EDC to conduct environmental reviews of the projects it is asked to support. Canada is one of the first nations to enshrine such a requirement in its national laws. The amended Act also includes a requirement for the Auditor General to oversee the design and implementation of EDC’s environmental policies, through periodic examinations that will be reported to Parliament. Coupled with these legal requirements, EDC has developed a new disclosure framework which provides for extensive disclosure of information on the Corporation’s activities. These are indeed progressive policies, and will ensure that EDC remains properly responsive to the values and concerns of Canadians. Information on EDC’s revised environmental review procedures can be found on its Web site at www.edc-see.ca.

Thank you for taking the time to write.

Sincerely,

Pierre S. Pettigrew
Minister for International Trade
Ottawa, Canada