Bill C-13 (Historical)
An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)
This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.
Rob Nicholson Conservative
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament often publishes better independent summaries.
This enactment amends various provisions of the Criminal Code in relation to criminal procedure, language of the accused, sentencing and other matters.
The amendments respecting criminal procedure provide for, among other things,
(a) the use of a means of telecommunication to forward warrants for the purpose of endorsement;
(b) changes to the process with respect to the challenge of jurors;
(c) a new election for the accused where a preferred indictment has been filed against him or her or where the Supreme Court of Canada orders a new trial;
(d) an appeal of a superior court order with respect to things seized lying with the court of appeal;
(e) summary dismissal by a single judge of the court of appeal when an appeal has erroneously been filed with that court; and
(f) a summary conviction trial with respect to co-accused that can proceed where one of the co-accused does not appear.
The amendments respecting the language of the accused clarify the application of provisions related to that matter.
The amendments respecting sentencing provide for, among other things,
(a) clarifications with respect to the application of impaired driving penalties;
(b) the power to order an offender not to communicate with identified persons while in custody and the creation of an offence for failing to comply with the order;
(c) the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program;
(d) an increase of the maximum fine that can be imposed for a summary conviction offence to $5,000 and a change with respect to the calculation of the period of imprisonment to be imposed in default of payment of a fine;
(e) the suspension of a conditional sentence order or a probation order during an appeal;
(f) in the case of a person serving a youth sentence who receives an adult sentence, clarification that the remaining portion of the youth sentence is converted to an adult sentence; and
(g) the power of a court to order, on application by the Attorney General and after convicting a person of the offence of luring a child by means of a computer system, the forfeiture of things used in relation to that offence.
The enactment amends the description of the offence of conveying information on betting and book-making so that the offence encompasses the conveying of that information by any means and makes related changes to the exemption provided with respect to the use of a pari-mutuel system.
Finally, amendments are also made to reclassify the offence of possession of break and enter instruments into a dual procedure offence.
- April 16, 2008 Failed That the motion be amended by deleting the words “agrees with amendments numbered 2, 4, 5 and 6” and substituting therefore the words “agrees with amendments numbered 1, 2, 4, 5 and 6” and by deleting the paragraph commencing with the words “disagrees with amendment numbered 1”.
March 4th, 2014 / 12:15 p.m.
Ève Péclet La Pointe-de-l'Île, QC
Thank you very much, Mr. Chair.
I would like to thank the witnesses for their testimony.
My first question has to do with the role of the judge. Since Bill C-13 was adopted, the judge must inform the accused of his right to stand trial in the official language of his choice. However, the judge is under no obligation to inform the accused personally. He must simply ask if the accused was made aware of this right.
What can you tell us about this provision? In your respective provinces, has it caused any problems?
February 25th, 2014 / 11:05 a.m.
Renée Soublière Senior Counsel, Litigation Coordinator and Supervisor, Official Languages Directorate, Department of Justice
Good morning. I am pleased to appear before you again to help you continue your review of the language provisions in the Criminal Code. As you know, I appeared here on May 27, 2013, when the committee began its review.
I would like to begin by introducing myself again. I am Renée Soublière, Senior Counsel and Litigation Coordinator in the Official Languages Directorate, which comes under the Public Law Sector of Justice Canada.
I am accompanied by Michel Francoeur, Director and General Counsel in the same directorate. Mr. Francoeur will outline the concrete steps taken by the Department of Justice in support of the Criminal Code language provisions. I am also accompanied by Robert Doyle, Chief of the Executive Secretariat with the Public Prosecution Service of Canada. Mr. Doyle also acts as the national secretary of the Federal-Provincial-Territorial Heads of Prosecution Committee and he will be able to answer any questions you may have about the implementation of the Criminal Code's language provisions.
To begin with, I would again like to describe the role that I play in the Official Languages Directorate, previously known as the Official Languages Law Section. I am part of a team of specialized legal counsel responsible for providing legal advice to the government on any issue of language law, especially with respect to the Canadian Charter of Rights and Freedoms, the Official Languages Act and the Criminal Code.
The team is also tasked with developing the position of the Attorney General and the Government of Canada in language cases that go before the courts. Finally, my team is also responsible for providing opinions and advice on language policies, particularly with respect to any proposed legislative amendments affecting language rights.
As such, it was the Official Languages Law Section, as it was then called, that developed the policy directions that lead to the passage of the 1988 Official Languages Act, including the amendments to sections 530 and 530.1 of the Criminal Code. As you know, those provisions give accused persons the right to a trial in the official language of their choice.
It was also in that capacity that my team, along with our colleagues in the Criminal Law Policy Section, helped developed the legislative amendments contained in Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), which was passed in 2008. I had the opportunity and the privilege to head up that projet and to participate in all of its stages, from developing the policy directions through the consultations to the drafting of the bill and its consideration in committee. I appeared before the Standing Senate Committee on Legal and Constitutional Affairs on November 28, 2007, when it began its consideration of Bill C-13.
I felt it was important to once again describe the role and mandate of the section in which I work so that you will understand the limits on what I can say here today. I will be pleased to discuss the provisions in part XVII of the Criminal Code, to provide you with the context for the 2008 amendments and to answer any questions you may have in that respect. However, my presentation today will not deal with either the implementation or the enforcement of the Criminal Code provisions, since my team does not play any role in that area.
With the committee's indulgence, I will start with a general overview of sections 530 and 530.1. I will then explain the origin and content of the legislative amendments adopted in 2008.
Before doing so, I feel it is important to highlight four points.
First of all, as former Justice Bastarache of the Supreme Court of Canada said in Beaulac, sections 530 and 530.1 of the Criminal Code perfectly illustrate the progression of linguistic rights through legislative means, in accordance with subsection 16(3) of the charter. In fact, the federal Parliament, in exercising its power over criminal law and the criminal justice system, adopted a number of legislative measures designed to extend the linguistic rights of the accused before the courts, including sections 530 and 530.1.
Secondly, I think it would be helpful to point out the purpose of section 530. Again, according to former Justice Bastarache in Beaulac, section 530 is designed first and foremost to grant equal access to criminal courts to accused who speak one of Canada's two official languages, in order to help official language minorities preserve their cultural identities.
Thirdly, bear in mind that the right of an accused to be tried in one official language or the other is not new. In fact, the right of an accused to be tried in the official language of his choice was initially recognized in the first Official Languages Act, in 1969. In 1978 and again in 1988, Parliament sought fit to broaden the scope of an accused's linguistic rights and to clarify the conditions of a criminal trial to take place in the language of the minority.
On January 1, 1990, the provisions I'm referring to, sections 530 and 530.1, came into force throughout the country. Since that date, any accused person facing criminal charges can therefore be tried in the official language of his choice, regardless of where he is in the country. In concrete terms, that means that the various jurisdictions in the country must be in a position to respond to applications for trial in a minority language and have the adequate institutional infrastructure to provide services in both languages equally.
Fourthly, the purpose of the 2008 amendments was not to change the provisions substantially. The main objective of the 2008 amendments was to clarify certain provisions, to codify the current state of jurisprudence and to make up for certain shortcomings that had been identified in the jurisprudence and studies on these provisions.
Let's now move on to the specific content of sections 530 and 530.1. What are the rights and corresponding obligations set out in these provisions? I don't know if you have the provisions of the Criminal Code in front of you, but it would be helpful for you to have them at your fingertips.
Let's start with section 530.
Subsection 530(1) stipulates that, on application of an accused whose language is one of the official languages of Canada, the judge may grant an order directing that the accused be tried before a judge or judge and jury who speak the official language of Canada that is the language of the accused, or if the circumstances warrant, who speak both official languages.
Subsection 530(2) covers a situation where the language of the accused is not one of the two official languages. In this case, the judge, on application of an accused, may grant an order directing that the accused be tried before a judge or judge and a jury who speak the official language in which the accused, in the opinion of the judge, can best give testimony or, if the circumstances warrant, who speak both official languages.
According to subsection 530(3), as amended in 2008, the judge before whom an accused first appears shall ensure that they are advised of their right to have a trial in the language of their choice.
Before Bill C-13 was passed, only an accused who was not represented by counsel had the right to be informed of this right. Therefore, the 2008 amendment imposed on the judge the obligation to ensure that any accused, be they represented by counsel or not, were advised of their right to request a trial in the official language of their choice.
Subsection 530(4) allows the court before which the accused appears to issue an order under subsections 530(1) and 530(2), when the accused has not made a request within the deadline set out in the code.
Subsection 530(5) specifies that an order under this section that a trial be held in one of the official languages of Canada may, if the circumstances warrant, be varied by the court to require that it be held in both official languages, and vice versa.
Lastly, subsection 530(6) covers cases in which two or more accused who do not speak the same official language are each entitled to be tried before a judge or judge and jury who speak their official language. In other words, they would be tried together, but under subsection 530(6), there may be circumstances which could justify holding a trial before a judge or jury who speak both official languages.
Before moving on to section 530.1, allow me to mention the fact that, in 2008, subsection 530.01(1) was added. Under this new provision, at the request of an accused whose official language is English or French, the prosecutor must translate those portions of information or an indictment in the official language of the accused, who has the right to receive the translated documents in a timely manner.
Before subsection 530.01(1) was added in 2008, only the preprinted forms contained in part XXVIII of the Criminal Code were given to the accused in both official languages. The sections that were filled in by the informant were drafted and provided to the accused in the official language of the person who had filled in the form. Some courts ruled that it was inconceivable that an accused should not have the right to obtain such important documents in the official language of their choice. Consequently, they required that these documents be translated at the request of the accused.
Adding this new provision to the Criminal Code, by way of Bill C-13, helped to reflect the state of jurisprudence.
Let's now move on to section 530.1 and let us look at the provisions it contains.
First, the accused, their lawyer as well as witnesses, have the right to use either language during the preliminary inquiry and the trial.
Second, the accused and their lawyer can use either official language at the pleading stage, and during the preliminary inquiry and the trial.
Third, the witnesses have the right to testify in either official language during the preliminary inquiry or trial.
Fourth, the accused has the right to have a judge presiding over the preliminary inquiry or trial who speaks the same official languages as the accused or, when a bilingual trial has been ordered, who speaks both official languages.
Fifth, the accused has the right to have the prosecutor—other than a private prosecutor—speak the same official language as the accused or, when a bilingual trial has been ordered, speak both official languages.
Sixth, the court must provide interpretation services to the accused, their lawyer and witnesses, during the preliminary inquiry or trial.
Seventh, the record of proceedings during the preliminary inquiry or trial must contain a transcript of everything that was said during those proceedings in the official language in which it was said, the transcript of any interpretation into the other official language, if proceedings were indeed interpreted, as well as any documentary evidence that was tendered during those proceedings in the official language in which it was tendered.
Eighth, the court must make sure that the judgment or the decision, including the list of reasons, is made available in the official language of the accused.
Allow me now to briefly explain the context behind the 2008 amendments.
The implementation of the language rights provisions in the Criminal Code had created from time to time some legal and practical difficulties, as demonstrated by the case law that had developed over the years. A number of reports and studies by different stakeholders had also confirmed the need to improve and clarify some of the language of trial provisions in the Criminal Code.
In particular, in November 1995 the Commissioner of Official Languages published a study entitled, “The Equitable use of English and French Before the Courts in Canada”. This study concluded with 13 recommendations for strengthening and advancing language rights in the courts, and particularly before criminal courts.
The Department of Justice's response to that study was to prepare a working paper. In November 1996 a document prepared by our section entitled, “Towards the Consolidation of Language Rights in the Administration of Justice”, was published and widely distributed.
This document basically responded to the commissioner's recommendations with a number of proposals to be used as a starting point for public consultations. It served as a basis for public consultations, which were held from November 1996 to April 1998. Then, in May 1999 the Supreme Court of Canada issued its decision in the Beaulac case, which related specifically to the language provisions of the Criminal Code at issue in our initiative.
The Supreme Court in Beaulac confirmed that there indeed were difficulties inherent in applying and interpreting those provisions. The Supreme Court made specific comments on mechanisms for publishing the language rights of accused persons, on the time allowed for exercising the rights set out in sections 530 and 530.1, and as well, on the application of those provisions in the context of bilingual trials.
As a result of the court's decision, our recommendations were re-examined and substantially modified to reflect the new state of the law. We held consultations again on the content of the proposed changes, and eventually the legislative proposals made their way into a bill along with other criminal law related amendments.
The amendments of 2008 to the language of trial provisions were therefore the fruit of a lengthy process involving many different players. Their main goal was to propose workable and balanced solutions to a number of problems that had been identified and to help ensure the effective implementation of the language rights provisions of the Criminal Code.
I know that after our appearance last May, your committee communicated with the provinces and territories to ask them to provide you with their input on the implementation of the linguistic provisions of the Criminal Code, notably the implementation of the 2008 legislative amendments. I know that you received some responses. I also understand that some provinces will be asked to appear before the committee. I am sure that this will be extremely useful to you.
Thank you for your attention. I will now give the floor to my colleague Mr. Francoeur.
May 27th, 2013 / 4:30 p.m.
Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
I think they're doing it in Manitoba as well. But the exclusion of New Brunswick in that provision was actually added by the Senate when it studied Bill C-13 in 2008. It doesn't change the substance of the provision. It simply recognizes, as you correctly point out, that New Brunswick courts are institutionally bilingual, and so they're—
May 27th, 2013 / 3:30 p.m.
Renée Soublière Senior Counsel and Litigation Coordinator, Official Languages Law Section, Department of Justice
Hello. It is a pleasure for us to appear before you today in order to help you begin your review of the Criminal Code's language provisions.
Please allow me first of all to introduce myself. I am Renée Soublière, Senior Counsel and Litigation Coordinator of the Official Languages Law Section, which is part of the Department of Justice's Public Law Sector.
With me this afternoon is Mr. Michel Francoeur, Director and General Counsel of the Office of Francophonie, which is part of the Department of Justice's Justice in Official Languages and Legal Dualism Section. Mr. Francoeur will report on the concrete measures the department has taken with an eye to supporting the respect of language rights set out in the Criminal Code.
I am also accompanied by Mr. Robert Doyle, from the Public Prosecution Service of Canada. Among other things, Mr. Doyle acts as National Secretary of the Federal/Provincial/Territorial Heads of Prosecutions Committee. He will be able to talk to you about the concrete implementation of the Criminal Code's language provisions, and can answer any questions you may have about this.
First of all, I will explain my role as part of the Official Languages Law Section, the OLLS. The OLLS is a team of specialized legal experts mandated with providing legal advice to the government on issues of language rights that flow from, among other things, the Canadian Charter of Rights and Freedoms, the Official Languages Act and the Criminal Code. The OLLS is also responsible for developing and coordinating the Attorney General's and Government of Canada's positions in linguistic matters that are brought before the courts. Finally, the OLLS is responsible for drawing up any proposed legislative amendment affecting language rights.
As such, the OLLS developed legislative proposals that led to passing the 1988 Official Languages Act, which included amendments to the Criminal Code's language provisions.
It is also in this role that the OLLS participated, with its colleagues from the Criminal Law Policy Section, in drawing up legislative amendments contained in Bill C-13, An Act to Amend the Criminal Code (Criminal procedure, language of the accused, sentencing and other amendments), passed in 2008.
I also had the opportunity and the privilege to act as project leader and to be involved in every step, from the creation of guidelines to consultations, as well as the writing of the bill and the study of it in committee. Moreover, I appeared before the Standing Senate Committee on Legal and Constitutional Affairs on November 28, 2007, as it began its study of Bill C-13.
It seems important to me to call your attention to the exact wording of the review clause in part XVII of the 2008 Criminal Code. When reading this clause, one can see that it refers to a twofold review. Subsection 533.1(1) does in fact mention a comprehensive review of the provisions and the application of part XVII, entitled “Language of the accused”.
If I considered it important to explain the role and the mandate of the section for which I work, and to call your attention to the wording of the review clause, it is so that you can immediately understand the limits of my comments today. It would be my pleasure to discuss the provisions of part XVII of the Criminal Code, to provide you the context behind the 2008 amendments, and to answer any question you might have in this matter. However, my presentation this afternoon does not deal with the application or the implementation of these provisions, since my team has no role to play in this regard.
With the committee's permission, I'll start by giving a general presentation on the content of sections 530 and 530.1. I believe you have a copy of these provisions, with the English and French versions side by side. I'll then explain the context behind the 2008 amendments.
Before I proceed, it seems important to me to emphasize four points.
First of all, former justice Bastarache, as he was then, said in the Supreme Court ruling R. v. Beaulac, on behalf of the majority, sections 530 and 530.1 of the Criminal Code constitute a perfect example of the advancement of language rights through legislative means provided for in subsection 16(3) of the charter. Indeed, the federal legislator, when exercising its power over criminal law and criminal procedure, passed a great number of legislative measures with the intent of extending language rights to the accused before the courts, namely sections 530 and 530.1.
Secondly, one must keep in mind the intent of section 530. Again, according to former justice Bastarache, as he was then, section 530 aims above and beyond all else to provide the accused with equal access to criminal courts, if they speak one of the two official languages of Canada, in order to help official language minorities to preserve their cultural identity.
Thirdly, it must be noted that the right of any accused to be tried in the official language of their choice is nothing new. Indeed, this right was first recognized in the 1969 Official Languages Act. In 1978, and again in 1988, Parliament decided that it would be useful to extend the scope of the language rights of an accused and specify the exact modalities of a criminal trial held in a minority language.
On January 1, 1990, the provisions being discussed, namely sections 530 and 530.1, which you have before you, came into force throughout the country. Any person facing criminal charges could, as of that date, choose to undergo their trial in the official language of their choice, regardless of where in the country they happened to be.
In reality, it means that the various jurisdictions of the country must be able to meet the request for a trial in the minority language and to have available the necessary institutional infrastructure to provide services equally in both official languages.
Fourthly, the amendments passed in 2008 were not intended to substantially change sections 530 and 530.1. The primary goal of the 2008 amendments—and I will come back to them shortly—was to clarify certain provisions, to codify the current state of case law and to fill certain gaps I identified in case law and studies of these provisions.
Let us now move on to the exact content of sections 530 and 530.1. What other rights and correlative obligations are included in these provisions?
Let us start with section 530. It has six subsections.
The first subsection of section 530 indicates that on application by an accused whose language is one of the official languages of Canada, the judge must grant an order directing that the accused be tried before a judge or a judge and jury who speak the official language of the accused, or, if the circumstances warrant, who speak both official languages. The deadlines by which the accused can make such a request are indicated in the first subsection, and the deadlines vary according to the nature of the procedure used to prosecute the offence.
The second subsection of section 530 applies to cases in which the language of the accused is not one of the official languages of Canada. In such a case, the judge may grant an order directing that the accused be tried before a judge or a judge and jury who, in the opinion of the judge, will allow the accused to best give testimony or who, once again, if the circumstances warrant, speak both official languages.
The third paragraph, as amended in 2008, requires that a judge before whom an accused first appears advise them of their right to face trial in the official language of their choice. Before Bill C-13 was passed, only those accused who were not represented by counsel had the right to be advised of this right. The 2008 amendment therefore requires that the judge ensure that all of the accused, whether they are represented or not, be advised of their right to request a trial in the official language of their choice.
The fourth subsection of section 530 concerns the situation of an accused who fails to make a request for a trial in their language before the prescribed deadlines.
The fifth subsection allows for an order indicating that an accused who must undergo their trial before a court that speaks one of the official languages be varied to require them to be judged by a court that speaks both official languages, and vice versa. Therefore, it is possible to vary the initial order.
Finally, the sixth subsection of section 530, added in 2008, indicates that when the co-accused do not speak the same official language and they respectively exercise their right to be judged by a judge who speaks their official language, but that otherwise these co-accused would be tried together, these may constitute circumstances that warrant that an order be granted directing that they be tried before a judge who speaks both official languages.
Before moving on to section 530.1, allow me to mention the addition, in 2008, of section 530.01(1).
This new provision indicates that the prosecutor shall cause the portions of an information or indictment to be translated into the official language of the accused, and to provide it at the earliest possible time on application by the accused.
Before the passage of the new subsection 530.01(1), only the preprinted parts of the forms indicated in part XXVIII of the Criminal Code were given to the accused in both official languages. The sections filled out by the accuser were written and provided to the accused in the language of the person who had filled out the form. Certain courts considered it unfathomable that an accused would not have the same right to obtain the translation, given the importance of these documents. Therefore, they required that they be translated upon request. Some jurisdictions implemented practices to comply with these decisions. The addition of a provision in this matter, through Bill C-13, both standardized these practices and better reflected the status of case law.
Let us now move on to section 530.1.
Section 530.1 outlines the specific rights that may be exercised when an order is granted under section 530. It prescribes the following.
First of all, it indicates that the accused, his counsel, and witnesses have the right to use either official language during the preliminary inquiry and trial.
Second, it indicates that the accused and his counsel may use either official language in any proceedings relating to the preliminary inquiry or trial.
Third, it indicates that any witness may give evidence in either official language during the preliminary inquiry or trial.
Fourthly, it indicates that the accused has the right to have a justice who speaks the official language of the accused or both official languages.
Fifth, it indicates that the accused has the right to have a prosecutor—other than a private prosecutor—who speaks the official language of the accused or both official languages.
Sixth, it indicates that the court shall make interpreters available to assist the accused, his counsel or any witness.
Seventh, it indicates that the record of proceedings during the preliminary inquiry or trial shall include a transcript of everything that was said during those proceedings in the official language in which it was said, as well as a transcript of any interpretation into the other official language of what was said, and any documentary evidence that was tendered during those proceedings in the official language in which it was tendered.
Finally, the eighth item indicates that the court shall make available any trial judgment in the official language of the accused.
Allow me now to briefly explain the context behind the 2008 amendments.
The implementation of the language rights provisions in the Criminal Code had, from time to time, created some legal and practical difficulties, as demonstrated by the case law that had developed over the years. A number of reports and studies by different stakeholders had also confirmed the need to improve and clarify some of the language of trial provisions of the code.
In particular, in November 1995, the Commissioner of Official Languages published a study entitled “The Equitable Use of English and French Before the Courts in Canada”. This study concluded with 13 recommendations for strengthening and advancing language rights in the courts, particularly before criminal courts.
The department's response to that study was to prepare a working paper, and in November 1996, a document prepared by the official languages law section entitled “Towards a Consolidation of Language Rights in the Administration of Justice in Canada” was published and widely distributed. The document responded to the commissioner's recommendations with a number of proposals to be used as a starting point for public consultations. It served as the basis for public consultations, which were held from November 1996 to April 1998.
In May 1999, the Supreme Court of Canada issued its decision in Regina v. Beaulac, which related specifically to the language of trial provisions of the Criminal Code. The Supreme Court in Beaulac confirmed that there were indeed difficulties inherent in applying and interpreting these provisions. As a result of the court's decision the recommendations were re-examined and substantially modified to reflect the new state of the law. Consultations were held once again on the content of the proposed changes and eventually the legislative proposals made their way into a bill, along with other criminal law-related amendments. The amendments to the language of trial provisions of 2008 were therefore the fruit of a lengthy process involving many different players. Their main goal was to propose workable and balanced solutions to a number of problems that had been identified and to help ensure the effective implementation of the language rights provisions of the Criminal Code.
I will end my speech by inviting you to communicate with the provinces and territories, the heads of court services, provincial heads of criminal prosecutions and any other entity directly involved in implementing these provisions. They will no doubt provide you with important and useful information relating to the study you are currently undertaking.
I will now give the floor to Mr. Robert Doyle.
May 6th, 2009 / 3:55 p.m.
Rob Nicholson Niagara Falls, ON
Thank you very much.
With respect to mega-trials, one of the concerns they raise with me is not just the question of the cost of a mega-trial, it's getting through them and having them move through the system. The federal and provincial deputy ministers and departments are working on what we generally call criminal law efficiencies. We had the one Bill C-13. As you know, Mr. Ménard, it's very difficult to get one of these bills through, because what happens is you put these reforms together and you'll have one organization somewhere—they sort of cherry-pick these things—say they're not quite sure about one issue.
But I'm very committed to that. We had Bill C-13 passed. That was the fourth attempt in ten years to get that through. I'm committed to moving forward with efficiencies, and of course I'm always looking at ways to do that. But there's a lot of good work being done right now at the federal-provincial level, and I'm pleased to do that.
With respect to the interface between organized crime and legal businesses, I think we're moving forward. In terms of dealing with organized crime, one of the reasons we're moving on identity theft is just for that reason--and I heard this very loud and clear some time ago when I was in Montreal--people collecting and moving information, using computers, sometimes moving it offshore, out of the country, and then using it for ultimately an illegal purpose. Regardless of how it was put together, the gaps in the present criminal law were very clearly identified to me, and I think when you have a look at that bill, when you get that from the Senate, you'll see that it's addressed.
Changes right now that you can see: with respect to giving power to Canada Border Services Agency guards, to make sure they're able to intercept property moving in and out of this country that may start for illegal purposes or end up for illegal purposes. I think all those steps are in the right direction, but I'm always looking at ways to improve the laws.
May 5th, 2009 / 1:40 p.m.
Rob Moore Parliamentary Secretary to the Minister of Justice
Mr. Speaker, I am pleased to speak today in support of Bill C-26, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime).
The bill is aimed at tackling the separate but related problems of auto theft and trafficking in stolen property and other property obtained by crime. The bill reintroduces offences for tampering with a vehicle identification number and for trafficking in property obtained by a crime, which was initially set out in Bill C-53, a bill that our government introduced in the 39th Parliament.
Bill C-26 also proposes a new distinct offence of theft of a motor vehicle, which is similar to the offence proposed in Bill C-343, a private member's bill introduced by the hon. member for Regina—Qu'Appelle, which died on the order paper in the last Parliament. I would be remiss if I did not mention at this time the efforts of the member for Regina—Qu'Appelle for his outstanding work on behalf of his constituents and for raising awareness of this serious issue.
Auto theft is one of the most pervasive forms of property crime in Canada. While there has been a downward trend in auto theft rates in the last decade, it stills remains one of the highest-volume offences in Canada. In its December 2008 report on motor vehicle theft, Statistics Canada reported that in 2007 approximately 146,000 motor vehicle thefts were reported to the police across Canada, averaging 400 thefts per day.
Motor vehicle theft has created a significant impact on owners, law enforcement and the insurance industry. The Insurance Bureau of Canada estimates that auto theft costs Canadian more than $1 billion each year, including non-insured vehicle theft, policing, health care, legal costs and out-of-pocket costs such as insurance deductibles.
Motor vehicle theft also creates public safety concerns for Canadians, as stolen vehicles are often involved in police chases or dangerous driving, which can result in injury or death to innocent bystanders. Such was the case of the tragic death of Theresa McEvoy, a Nova Scotia educator and mother of three children who was killed on October 14, 2004, when her car was struck by a youth driving a stolen vehicle. Sadly, this is not a rare incident. A study carried out by the National Committee to Reduce Auto Theft reported that in the period of 1999-2001, 81 people were killed as a result of auto theft and another 127 people were seriously injured.
The bill therefore proposes that a new offence of motor vehicle theft be added at section 333.1 of the Criminal Code. It is true that many offences in the Criminal Code already address motor vehicle theft, such as theft, fraud, joyriding, possession of property obtained by crime and flight from a police officer. However, the bill would create a distinct offence with an enhanced penalty for a third and subsequent conviction in the form of a mandatory minimum sentence of six months imprisonment.
The creation of this distinct offence is an important measure that will assist prosecutors. A problem currently facing the courts is that very often a prosecutor is unaware that the offender is a career car thief. Normally, the offender is simply charged with theft over $5,000 or possession of property over $5,000 and there is no indication on the available record as to the type of property that was stolen. The result is the prosecutor and the judge do not know if they are dealing with a prolific car thief or with a car thief involved with organized crime. The proposed distinct offence will help give the courts a clearer picture of the nature of the offender for bail hearings and when it comes time to impose a sentence.
In a report published in 2004, Statistics Canada estimated that roughly 20% of stolen cars were linked to organized crime activity. Organized crime groups participate in the trafficking of stolen autos in at least three ways. First, they operate chop shops, where stolen vehicles are disassembled and their parts are trafficked, often to unsuspecting customers. Second, organized crime is involved in the process of altering a car's legal identity through changing its vehicle identification number, commonly known as its VIN. Third, high-end, late-model luxury sedans and sport utility vehicles are exported from Canadian ports to far-off locations in areas such as Africa, the Middle East and Eastern Europe.
The bill takes serious steps to address organized crime's involvement in motor vehicle theft in a number of ways, including by the proposed creation of two new offences of general application that will target trafficking in property obtained by crime whether stolen property or property obtained by fraud or other crimes. Let me be clear, though. The scope of the proposed trafficking offences is comprehensive and will extend to all forms of trafficking and property obtained by crime, not just stolen autos.
To understand how the proposed offence of trafficking and property obtained by crime would help, consider what ultimately happens to personal property when it is stolen during a typical break and enter. Members in the House probably have constituents who can relate to the offence of break and enter. When thieves break into homes, the first thing they usually do with the goods is sell them to a fence, who buys them at a significant discount and then sells the stolen property at a profit, either to pawn shops, legitimate businesses or directly to customers who have ordered a specific item such as a high-end bicycle or electronics.
In the theft cycle it is the fence who provides the avenue to pursue the financial incentive that motivates the thief to commit the initial crime.
Another example of trafficking involves the stealing of vehicles to export or dismantle for parts. This is a lucrative business for organized crime and one that affects the legitimate retail industry. Stolen parts are easily fenced and often sold to unsuspecting customers or garages. It is far easier to traffic automotive parts than entire vehicles, especially when exporting by sea.
Selling automotive parts can also be more lucrative than selling an entire automobile because parts from cars older than five years old are often worth much more than the vehicle would be worth if it was sold as a whole.
Chop shops that disassemble stolen cars thrive in urban areas, especially those with easy access to ports. Canadian chop shops export automotive parts throughout the world.
Presently the general offence of possession of property obtained by crime in section 354 of our Criminal Code carries a maximum of 10 years imprisonment for property valued over $5,000. It is the principle Criminal Code offence that is used to address trafficking in property obtained by crime. There is no specific trafficking offence that adequately captures the full range of activities involved in trafficking, such as selling, giving, transferring, transporting, importing, exporting, sending or delivering stolen goods. The current theft and possession provisions also do not recognize organized crime involvement in these activities.
There is an organized nature to the activities involved in dealing in property obtained by crime. Take auto theft as an example. Chop shops often keep as little inventory as possible to avoid detection and to minimize the risk of multiple counts in the event of a raid. The offence of possession of property obtained by crime does not capture the fact that the chop shop operation processes far more motor vehicles than are normally seized during a raid. Additionally, the police often only charge the person who is in possession of the property at the time of the raid. In many cases none of the other players can be fully prosecuted during the existing theft or possession offences.
To more effectively address organized crime, including commercial auto theft, it is necessary to target all the middlemen, including the seller, the distributor, the person chopping the car, the transporter and the person arranging and organizing these transactions. This is also the case in regard to the trafficking of stolen property in general.
The proposed reforms in Bill C-26 will give law enforcement and prosecutors new tools to target those who participate in any part of the entire range of activities that are involved in the disposal of illegally obtained goods. To this end, it will make it an offence to traffic in or possess for the purpose of trafficking in property obtained by crime.
The proposed offences will be based on a wide definition of trafficking. It will include the selling, giving, transferring, transporting, importing, exporting, sending or delivering of goods or offering to do any of the above. As such this, new law will target all of the middlemen who move stolen property from the initial criminal act through to its sale to the ultimate consumer.
I should mention that there are victims at both ends of the spectrum, the individuals who have had their property stolen and the unsuspecting purchasers of goods obtained through the theft from innocent victims.
This government believes that serious crime should be appropriately punished. Accordingly the proposed trafficking and possession for the purpose of trafficking offences will have higher penalties than the existing possession offence in section 354 of the Criminal Code. If the value of the item trafficked exceeds $5,000, the maximum penalty will be 14 years imprisonment. If the value is less than $5,000, the matter will be a hybrid offence and will carry a maximum penalty of five years imprisonment on indictment or six months on summary conviction.
As noted, the movement of stolen property across Canada's international borders, especially automobiles, is a particular problem. However, at our ports now, Canada Border Services Agency officials cannot use their administrative powers under the Customs Act to stop suspected stolen vehicles from leaving our ports. In order for the CBSA to be able to bar the cross-border movement of property obtained by crime, goods must first be classified as prohibited goods for the purpose of importation or exportation.
No such classification is currently set out under federal law. If customs officials come across suspected stolen automobiles, they do not currently have the administrative authority to detain the shipment, or even to determine themselves whether the cars are stolen by accessing databases. They can, of course, refer clear cases of criminal activity to the police, but the application of administrative customs' powers would be far more effective in helping to interdict the export of stolen goods.
To address this concern, I am pleased to say that the bill proposes to supply the necessary express prohibition against the importation or exportation of property obtained by crime. This would trigger the administrative enforcement powers of the Canada Border Services Agency.
In the case of auto theft, for example, CBSA officers would be able to investigate, identify and detain imported vehicles or vehicles about to be exported, and to search databases to determine whether such vehicles were indeed stolen. These actions could ultimately produce evidence that would allow the police to conduct criminal investigations and lay criminal charges.
As I have mentioned, another one of the ways in which organized vehicle theft is facilitated involves disguising the identity of stolen vehicles. This process involves stripping the vehicle of all existing labels, plates and other markings bearing the true vehicle identification number, and then manufacturing replacement labels, plates and other markings bearing a false vehicle identification number obtained from imported or salvaged vehicles.
There is currently no offence in the Criminal Code that directly prohibits tampering with a vehicle identification number. Like trafficking, the current Criminal Code provision used to address VIN tampering is the general offence of possession of property obtained by crime.
The proposed amendment would make it an offence to wholly or partially alter, obliterate or remove a VIN on a motor vehicle. Under the new offence, anyone convicted of tampering with a vehicle identification number could face imprisonment for a term of up to five years on indictment, or punishment on summary conviction.
As of October 1, 2008, when Bill C-13 came into force, the general penalty for an offence punishable on summary conviction is now a fine of not more than $5,000, or a term of imprisonment not exceeding six months, or both. This would be an additional offence. A person could be charged with both the possession of property obtained by crime and the proposed VIN tampering offence, which could result in a longer sentence. In order to ensure that the proposed VIN tampering offence does not capture lawful behaviour such as automobile body repair, recycling and wrecking, the offence also includes an express exemption provision.
This government is serious about fighting crime, and this legislation is a strong measure to help law enforcement and prosecutors punish criminals who commit auto theft and trafficking in property obtained by crime.
I want to take this opportunity to thank our Minister of Justice, who has carried the ball on a number of significant measures that tackle violent crime, gang crime, organized crime and motor vehicle theft. As he is fond of saying, we are just getting started.
There is so much more we can do, and we are doing that. This bill is a big part of protecting all Canadians from the offence of motor vehicle theft.
February 26th, 2009 / 9:10 a.m.
Chief Constable, Canadian Association of Chiefs of Police
Retention also plays a role in the data bank. Currently, access to the profile is disabled when a conviction is overturned on appeal. Congruency would allow these to be kept. The U.K. experience is that 15% of matches occur in this category.
Congruency with the identification act would also move the approval process from a court-ordered one to an administrative one, and by doing so improve submission rates, and indeed reduce error rates.
We also strongly advocate for additional indexes. We believe a human remains index would assist in identifying missing persons, a deceased offender index would assist in solving crime, and a voluntary live victims index could provide linkage to other victims, human remains, crimes, and offenders.
Though it's possibly not within the scope of this committee's review, some comment regarding capacity must be made, given our wish to see the data bank grow. It is our contention that while capacity and expansion are linked, they should be addressed separately. Capacity will continue to be an issue as the science evolves and the ability to detect and retrieve samples increases, regardless of an expansion of designated offences and retention rules.
In 2007 the CACP passed resolution 2703 calling on the federal government to fully fund DNA analysis to meet demand, and we continue to work towards this. We believe legislation should support capacity growth rather than restrict it.
I have two final points I would like to make. One is with respect to search limitations. Currently the legislation does not permit the searching of the bank with evidence of human remains that we believe to be a person convicted and on the index, so it's necessary to obtain a production order for this information. Nor does the bank permit a data bank search for familial matches where this would also aid the investigation focus and eliminate non-involved persons.
Finally, I'd like to talk about the administrative burden caused by the endorsement process for repeat offenders. Currently fingerprints must be taken each time a person on the index is arrested for a designated offence, causing a significant administrative burden in the case of prolific recidivist offenders. We would recommend that persons provide one full sample of one endorsement set of fingerprints only. This will remove this burden.
To conclude, the CACP has historically taken all opportunities to provide input into legislative reform, policy improvements, and innovative solutions, and in regard to the use of DNA as an aid for identifying criminals and exonerating the wrongfully convicted has strongly advocated and supported the government's proposal for the creation of a national data bank through the 1990s. We were consulted and we rendered opinions all through 2002 with respect to the legislation. In respect to Bill C-13, we suggested a number of amendments that were subsequently legislated.
We acknowledge and are very gratified by the level of responsiveness the government has shown. We continue to advocate for the expansion of DNA legislation with a view to making it consistent and parallel with the Identification of Criminals Act. We would ask the government to give consideration to the issues I've raised herein.
Thank you, Mr. Chairman.
February 9th, 2009 / 4:45 p.m.
Rob Nicholson Niagara Falls, ON
I know there's quite a bit of work that goes on, Mr. Rathgeber, with respect to all aspects of the criminal justice system. This is an issue that has been raised with me by my provincial counterparts and it has been discussed. I've indicated on a number of occasions that we look at all aspects of the criminal justice system, and we're taking our changes to the criminal justice system one step at a time. I've indicated, for instance, that I think the mandatory jail sentences that were provided in our drug laws are steps in the right direction. We don't close the door off to any reform of the criminal justice system in this country.
That being said, in response to other questions, we have a number of issues that I would like to see addressed, including identity theft, car theft--auto theft is a huge problem in this country--organized crime, gangs, drugs. I hope we can move through all these issues in an expeditious manner. Perhaps we can get those pieces of legislation passed when they are introduced. As I said to you or to your colleagues, we're just getting started with changes to the criminal justice system in this country, and we would continue to make that available.
It's our understanding that judges take this into consideration, quite frankly, when they are making that sentence. They know how long the individual has been detained. One of the things we're doing is that we'd like to see the process speeded up in the sense that people get access to justice, have their case heard, and move forward on the system.
You'll remember, or perhaps you may not remember, in the previous Parliament we had Bill C-13, which addressed a number of efficiencies in the system, because we want the system to move forward so you're not having an individual who finds himself or herself spending a long time in incarceration before their matter is being heard. These are our ongoing concerns, and we've made progress.
This was interesting to me. On that Bill C-13, which addressed a number of concerns, I was told, for instance, that this was the fourth attempt in 10 years to get something like that passed. So we're always looking for efficiencies and ways of expediting the process, at the same time as concerning ourselves with the rights of the individuals, as well as the rights of the victims and law-abiding Canadians. We want the system to work and we're prepared to look at all suggestions in this area.
May 29th, 2008 / 3:15 p.m.
The Speaker Peter Milliken
Order, please. I have the honour to inform the House that a communication has been received as follows:
May 29, 2008
I have the honour to inform you that the Honourable Marie Deschamps, Puisne Judge of the Supreme Court of Canada, in her capacity as Deputy of the Governor General, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 29th day of May, 2008, at 2:38 p.m.
The schedule indicates the bills assented to were Bill S-215, An Act to protect heritage lighthouses—Chapter 16; Bill C-293, An Act respecting the provision of official development assistance abroad—Chapter 17; Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)—Chapter 18; and Bill C-459, An Act to establish a Ukrainian Famine and Genocide ("Holodomor") Memorial Day and to recognize the Ukrainian Famine of 1932-33 as an act of genocide—Chapter 19.
May 9th, 2008 / 11:35 a.m.
Rob Moore Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Mr. Speaker, as we all know, the government is responsible for the appointment of the next justice of the Supreme Court of Canada. We recognize the need to act in a timely manner to fill this vacancy.
However, I should say to the hon. member that if he is so concerned about bilingualism in our courts, he should speak with his unelected Liberal colleagues in the Senate, who are holding up Bill C-13, a bill that will ensure access to both official languages in Canada.
May 8th, 2008 / 10:35 a.m.
Commissioner of Official Languages, Office of the Commissioner of Official Languages
May 8th, 2008 / 9:55 a.m.
Commissioner of Official Languages, Office of the Commissioner of Official Languages
Correct me if I'm wrong, but I get the impression that Bill C-13 was developed precisely to make it possible to do what you just mentioned. I've already appeared before the House Justice Committee and that of the Senate to express my support for that bill because it is an attempt to correct the deficiencies you've identified.
April 17th, 2008 / 3:40 p.m.
April 17th, 2008 / 3:40 p.m.
April 17th, 2008 / 3:20 p.m.
Roy Cullen Etobicoke North, ON
Mr. Speaker, I am very pleased to participate in the debate on Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
I should note that the bill was originally introduced as Bill C-13 in the first session of the 39th Parliament. It passed all stages in the House of Commons, was sent to the other place and is back here now with some amendments, which I and my colleagues believe enhance the bill. I will be supporting the bill, and I expect my colleagues on this side will as well.
We support the bill because it would a number of positive things to improve and enhance our criminal justice system. Some of these matters are quite procedural and technical in their nature, but, nonetheless, they are very important to ensure the system in the country works efficiently, effectively and brings justice to all.
Some of the aspects of the bill, for example, increase the maximum fine that can be imposed for a summary conviction offence from $2,000 to $10,000. The $2,000 limit had not been changed for some 30 years. The bill also calls for the suspension of a conditional sentence order or a probation order during an appeal. That enhances this law as well.
The proposed bill also provides the power to delay the sentencing proceedings so an offender can participate in a provincially approved treatment program. That is very important. In many cases we can lock people up and throw away the key, but eventually they will get out and have to be functioning and responsible citizens of our country. Therefore, if we can help someone deal with drug or alcohol abuse or some other social problem, this is to be very much encouraged.
In the case of a person serving a youth sentence who has received an adult sentence, the bill clarifies that the remaining portion of the youth sentence is converted to an adult sentence. This follows through on some of the changes that were made previously to the Youth Criminal Justice Act and something I think many Canadians often do not fully comprehend.
There is an impression that young people can commit crimes at will, flaunt the system and do not receive the types of sanctions that many Canadians think they should. However, we need to understand that if we put young people in jail, they can become hardened criminals. If they are not rehabilitated or given the appropriate treatment, in jail they will become even worse criminals. When they get out, they will offend again.
It is important that all criminals be rehabilitated while they are serving their time. At the same time, the youth criminal justice changes we made when we formed government allow a judge, at his or her discretion, to sentence a young person as an adult if, in the view of the judge, that young person deserves to be sentenced as an adult.
If I recollect correctly, the cutoff is age 14, and that is a very young. When people tell me that the age should be reduced further, I tell them that it is not something I would advocate. In fact, 14 is young enough. I think many judges would not be inclined to impose an adult sentence on someone of those young years unless the circumstances warranted it in the view of the judge. Nonetheless, it is important to have that provision so a judge can have the flexibility to do things like that.
One aspect that is not in the bill, although I hope it will come at some point in time, is an initiative that our government started. After two years of serving as government, I am surprised the Conservatives have not really acted upon it. It has to do with the modernization of investigative techniques.
I notice in the bill there are amendments which call for the use of telecommunications to forward warrants for the purpose of endorsement and execution in a jurisdiction other than the jurisdiction where the search warrant was obtained. Therefore, there are measures in the bill dealing with telecommunications, but we still do not have legislation to modernize investigative techniques for our law enforcement personnel. Let me describe what that is.
If we look at our Criminal Code today, if law enforcement officers can convince a judge that there are significant grounds, the judge can execute a search warrant. However, the search warrants and the wiretapping warrants are tailored to technologies that have been superceded, although not completely, and replaced by other types of media, other types of technology.
For example, wiretapping warrants on our books today, in terms of law, deal mostly with land phone lines. We know criminals today use wireless devices. They use cellphones, computers and the Internet. The problem is our laws are archaic in the sense that the police cannot tap these types of technologies. The problem, again, is criminals have moved ahead of law enforcement. In fact, some criminals will make a few calls on a cellphone and then chuck it away. They will do the same for other kinds of wireless devices.
When we were the government, we began a process to modernize these investigative techniques. It raised some concern in certain quarters that this was calling for a change in the ability or the power of the police to seek out a wiretap. The reality is it changed nothing in that regard. Law enforcement would still have to convince a judge that the wiretap was necessary. The only thing that it would do is it would allow the wiretap to be executed against a cellphone number, or a BlackBerry, or an Internet account, or some other telecommunications device.
While there is some confusion and some angst among citizens and others about what this type of legislation would do, in fact, it would do nothing more than what is on the books right now. It would not give the police the power or the authority to wiretap someone's line without a duly executed warrant by a judge.
The Conservative government talks about how it is getting the job done and how there has been 13 years of inaction. Here is something upon which the government should be acting.
There are a couple of other issues with telecommunications companies and servers. There are costs associated with adapting this technology or being in a state of readiness. If a warrant is executed by law enforcement officers, they need to have the capability and capacity, the technology within their own shops. There are costs associated with that.
There are also costs on a going forward basis if we require these telecommunications companies, like a server or mobile phone company, to retrofit to ensure their technologies are capable of putting these wiretaps on this technology. If this law were passed, companies would have to ensure the technology was engineered in such a way that if a warrant were executed, they could implement the wiretap on a cellphone, or on a BlackBerry, or on an Internet account. I believe this is holding the government back from doing something on this initiative, and that is a wrong reason.
Why should we be compromising the safety and security of Canadians because some telecommunications companies are anxious and nervous about the costs they would be faced with to adapt and execute this type of technology?
When we were the government, there were a lot of discussions and negotiations back and forth. My recollection is that there was some compromise, some meeting of the minds, as to how to move forward in this particular environment.
If my memory serves me correctly, these companies indicated a willingness on a going forward basis to build in the technologies and infrastructure needed so they would be in a state of readiness for warrants like this to be executed. I am not sure where those discussions went finally, but it is a matter of negotiation.
As for retrofitting, that is a bigger issue. It is a question of making the law come into force so the companies would have to retrofit all their technology, which is a big ticket item, and that is a matter for negotiation with the government.
However, I am surprised that it has taken two and a half years to negotiate something that would be reasonable in the circumstances. With the passage of time, the safety and security of our citizens have been put at risk. I do not think that is acceptable.
In fact, when we had the new civilian Commissioner of the RCMP, Mr. Bill Elliott, come to the Standing Committee on Public Safety and National Security, I asked him if the tools he needed to deal with this type of technology were there to make sure we were up to date with the technologies the criminals were using. He indicated that it would be an improvement if enabling legislation were in place so that we could beat the criminals at their own game.
Therefore, I encourage the government to bring forward legislation such as this, which would modernize our investigative techniques and give the police the same tools that criminals have. Does it make any sense for police officers to be using land line phones when the criminals are using not land lines but other technologies? It seems to me that this is an initiative that could have been incorporated into this bill, but it was not. I do not know where that particular item is.
We find in this bill that there are some improvements in the process that deal with our justice system. As I said earlier, I think some of them are more housekeeping in nature, but it is important housekeeping. It is something that I would encourage this House to support.
As an example, the amendments say that a summary conviction trial with respect to co-accused can proceed where one of the co-accused does not appear.
Another feature introduces changes to the process with respect to the challenge of jurors to, among other things, assist in preserving their impartiality.
It also brings in other amendments with respect to language rights provisions of the Criminal Code. This is a very important part of this legislation.
It means that an accused is informed of the right to be heard by a judge or a judge and jury who speak the official language of Canada that is the language of the accused, or both official languages of Canada. The amendments to this bill codify the right of the accused to obtain a translation of the information or indictment on request.
These are very important elements. We live in a bilingual country. We value our bilingualism. It is part of our national heritage. It is part of our strength as a nation. We also respect the right of individuals to be heard and listened to in the official language of their choice, one of the official languages of this country. I think that is also a very important part of Bill C-13.
I encourage the House to get on with this bill. It has been here before, it has been in the other place and it is back. Again, while sometimes the members in the other place are criticized, or that institution itself is criticized, there are many fine and competent people over there who can add value to legislation. In this case, I think they have done that.
I would encourage members of this House to support Bill C-13 in its current form. I certainly will be voting for it.