Retribution on Behalf of Victims of White Collar Crime Act

An Act to amend the Criminal Code (sentencing for fraud)

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Rob Nicholson  Conservative

Status

In committee (House), as of Oct. 26, 2009
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to

(a) provide a mandatory minimum sentence of imprisonment for a term of two years for fraud with a value that exceeds one million dollars;

(b) provide additional aggravating factors for sentencing;

(c) create a discretionary prohibition order for offenders convicted of fraud to prevent them from having authority over the money or real property of others;

(d) require consideration of restitution for victims of fraud; and

(e) clarify that the sentencing court may consider community impact statements from a community that has been harmed by the fraud.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

  • Oct. 26, 2009 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:05 a.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, I am glad to have the opportunity to be the first to speak today in favour of Bill C-52 regarding white collar crime recently introduced by the Minister of Justice.

I am a carpenter by trade and a union leader by occupation in the years before I was elected. Let me be the first to say here today that white collar crime is in fact very much a blue collar issue. Ordinary working Canadians should be very much concerned and consumed by the issue of white collar crime because if for no other reason we need to be able to trust the financial statements, companies, corporations and institutions where our pension plans, our workplace health and benefit plans, and in fact our savings are invested.

In recent years that confidence has been shattered to the core. Working people across North America are starting to wake up to the fact that what is happening around us today has put our retirement security in profound risk. Even playing by all the rules and following the recommendations of our financial investors and doing all the right things, like prioritizing our pension security in labour negotiations as opposed to a wage increase for today, all of that has been thrown into question. In fact, it has been more than thrown into question, it has been compromised and jeopardized to the degree that we are facing an income security crisis in our elder years.

It is very appropriate and timely that today's debate is about increasing the penalties for those who would put at risk the savings of the good working people of this country.

Let me begin by saying that what we are experiencing today is a predictable consequence of the frenzy throughout the 1970s, 1980s and 1990s to deregulate our financial institutions, to deregulate the marketplace, to get the heavy hand of government out of the way of the free market. That was the mantra throughout the 1970s, 1980s and 1990s.

Now we are seeing the predictable consequences of what I call the Reaganomics, this international trend toward deregulation with Maggie Thatcher, Ronald Reagan and Brian Mulroney cutting, hacking and slashing all the oversight and regulatory regimes in our financial marketplace. At the same time, in concert with that, the financial community was putting in place the most incomprehensible financial instruments one could possibly imagine, increasingly complex.

Fewer and fewer young people were going into engineering school and more and more were going into financial engineering school so they could devise these incomprehensible financial instruments like derivatives, hedge funds, and God knows what, as a smokescreen for a level of malfeasance and conspiracy to defraud that has never been seen before in the history of mankind.

I am not overstating this. There was a conspiracy on Wall Street and Bay Street to cloud financial activity to such a degree that they could get away with murder. As soon as greed entered that formula, the consequences, I say, are predictable.

Woody Guthrie had a great line. He said, “some will rob you with a six-gun, and some with a fountain pen”. The fountain pen guys have been robbing us blind, fleecing us mercilessly, shamelessly, revelling in it, and building new financial instruments to rob us with.

There is a famous poem, Mr. Speaker, that you may be familiar with. The frustration that I am experiencing dates back many centuries. It reads:

The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.

This is a poem from 1600 in medieval England that expressed the frustration of having a two-tiered judicial system where if people stole a loaf of bread they ended up in prison. My colleague from Edmonton is agreeing with me. But if people in fact stole the common from the goose, they were more likely to walk free.

It has been pretty common knowledge in Canada and in fact in North America until, hopefully, today that rich guys just do not go to jail. Rich guys might get caught up in some fraud or Ponzi scheme or financial scheme that defrauds seniors. They might get caught and they might get embarrassed or humiliated down at the country club, but they are not likely to go to prison.

If they did, they went to some country club where they played golf with their buddies. They were allowed to bring their horses to the prison so they could groom their horses in the private stables at the prison. They would not want to deprive a guy of being able to play polo, that would be cruel and unusual punishment to separate people from their polo ponies just because they are in prison. They are country club prisons.

That infuriates people. I know why they do not send rich guys to normal penitentiaries. It is because there is no room for them. Those jail cells are full of young aboriginal kids who stole the hub caps off of BMWs. They locked them up instead of the guys who own the BMWs and who might be guilty of a far greater crime in terms of this financial mischief that they have been up to.

When I began my comments by saying that we have to be able to trust the financial statements of the institutions where we invest our retirement savings, it is not just the people who deliberately defraud workers we need to be after. We need to look at a corporate accountability regime where the financial statements are easily understood, are transparent, and are without the glaring and ridiculous contradictions that exist.

Let me give an example where we could build off the spirit of this bill and improve the accountability regime of financial institutions. It is still permitted, believe it or not, that the auditor of a company does not have to be independent of the company. In fact, the auditor of a financial institution can provide the tax advice and other financial services to that business and then still be the auditor of that business.

How can individuals who design the income tax strategy for a big corporation be the auditors of those same books that they were in fact contracted to design? It is an inherent conflict of interest that we somehow tolerate when common sense itself would demand that we want the books audited by a fully, completely independent auditors so that the statements that they sign off on are free of any bias or prejudice about that company. That is just one example about how loosey-goosey and wild west our financial marketplace is in this country.

The NDP feels quite comfortable in supporting this bill about getting tough on crime in the white collar sense for a change. In fact, we welcome this shift on the part of the Conservative Party to look at some of the most heinous offences occurring in our system.

In actual fact, getting tough on crime, while we are not opposed to that idea, the Conservatives would have us believe that violent crimes, property crimes and other Criminal Code violations are on the increase when they are actually on the wane. Even in areas of high crime, like my own riding of Winnipeg Centre, the incidents of violent crime is actually on the decline. The incidents of white collar crime is on the increase.

Our attentions are well placed today when we decide to priorize and to look to what I see as a far greater offence in many ways and that is cheating working people out of large amounts of money.

Again, I have tried to sketch what I believe is some of the history and origins of the problem that we find ourselves in today. The rampant push for deregulation was proven to be misguided ideology. One of the reasons that our banking system survived the international economical downturn in a better way than a lot of other countries is that we did manage to thwart some of the deregulation that was being demanded in this country.

Ever since I have been a member of Parliament, there has been a push by the big banks to merge, to deregulate further, to model themselves actually very much after their counterparts in the United States. Thank God we did not because now people are looking to Canada with some well justified praise that we have weathered the financial economic crisis more capably and more ably than other countries.

Therefore, it was ideologically driven, that whole Reaganomics, Thatcherism and Mulroneyism that wanted to get government out of anything, let the free market prevail, laissez-faire capitalism, we will float all boats and so on. We now know that completely unregulated, laissez-faire capitalism leads to some people doing very well and the rest of us being left behind and very vulnerable to the lack of accountability that comes with either deregulating or hiding behind the facade of unreasonably complex financial vehicles constructed for the sole purpose of hiding the true activity that is going on behind the scenes.

I know, Mr. Speaker, you are a big fan of Michael Moore and I would like to believe that you would be a big fan of Michael Moore's latest movie. Interestingly enough, he challenges some of the basic tenets of capitalism as we know it today in his latest film. He stops Wall Street brokers coming out of their businesses where they sell financial instruments to well-meaning pensioners and so on and he asked them, “Just what is a derivative? Let's go for coffee. Can you explain to me the derivatives that you sell pension plan investors and hard-working people? Just what are some of the other complex financial instruments that your financial engineers have designed to show a profit where no such profit really exists to reap a profit on selling short or selling long on things that never existed, that are selling futures, et cetera.”

The whole system got so corrupted by greed that it bears no resemblance to actual wealth or the creation of wealth. It is not even backed up by any corresponding material, et cetera. We are trading trades. We are trading futures of trading. We are trading on the insurance that somebody bet on losing money on a hedge fund and so on. It no longer has any bearing whatsoever to producing a widget and selling interest in that company, and selling shares in that company which was a much purer form of the financial marketplace.

Those who would deliberately conspire to defraud pensioners and working people should be punished in a special way. It is easy to let anger overtake in a situation like this. I will not overstate the situation but I cannot say strongly enough how we need to be able to put--

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:15 a.m.
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NDP

Pat Martin Winnipeg Centre, MB

No. I am not arguing for capital punishment, as my colleague suggests. I might be getting there, as tempting as that may be for those like the Madoffs of the world who conspire to defraud seniors out of their heard earned pensions.

It is imperative and it is entirely appropriate that Parliament should condemn in the strongest possible terms these activities with new legislation that contemplates mandatory prison sentences for violators of this nature.

It is not often members hear an NDP member advocating mandatory prison sentences. In most cases we do not agree with that. We like to leave the choice whether to apply prison time to the judges. Our rationale for that is we do not believe the average street criminal is deterred by mandatory prison sentences and therefore it is not justified to take the discretion away from a judge.

In this case we believe white collar criminals will be deterred by the prospect that if they get caught in this type of Criminal Code violation, they are going to go to jail for a mandatory minimum sentence. They are not just going to have to hang their head in shame around the cocktail parties for a little while. They are going to actually go to prison. They are going to go to prison and they are going to serve hard time. It is not going to be hopefully some country club where they can bring their polo ponies with them and keep them in their own private stables.

That is why we can support the bill. It proposes fairly modest and simple amendments. This is not a long piece of legislation amending section 380 of the Criminal Code dealing with fraud affecting the public market. We think this same principle could be applied further and we would encourage the Minister of Justice to investigate other places this same reasoning and rationale could be applied. At least one example of where it could be applied would be to crimes regarding the environment.

We think mandatory minimum jail sentences for the board of directors and the CEO of a company that knowingly and willingly dumps PCBs into the Red River, for instance, should be introduced if we really want to deter that kind of heinous crime against large groups of people. That really perhaps sums up why this is justified as well. This type of crime is different from a break and enter into a house where someone's television set is stolen. These crimes by their nature and by their very design are intended to affect large numbers of people.

These Ponzi schemes suck in thousands, if not tens of thousands, of unsuspecting seniors who quite often are concerned about their retirement security. They hear an offer that sounds too good to be true, but they do not want to believe that cliché, so they buy into a Ponzi scheme that again is a hollow shell, or a shell game. It is not based on any substance.

I would argue that to a great extent, a lot of our financial marketplace is one big Ponzi scheme. When there is the type of trading that takes place on derivatives on the insurance against the losses of a company that has not even been set up yet, what is that if not a gigantic, complex Ponzi scheme? We have people investing in mines for which a shovel has not even been put in the ground and it is at three or four degrees of separation that people are investing. People are investing in the futures to offset the insurance based on a projection of earnings that might exist when they finally dig the hole. That is not security of any nature. People do not own a piece of a goldmine, but a piece of an insurance policy that someone else bought to protect themselves to hedge off the losses.

It is just incomprehensible gobbledygook and ordinary Canadians need someone to translate all this, because when it is translated, it turns out it is again some hollow shell game designed by a clever financial engineering student who put up a smokescreen so that they could loot people's goodwill and best interests. That is where we come full circle to the time-honoured poem that was used as a protest chant appropriately in the Commons in Westminster instead of the Commons in Ottawa:

The law locks up the man or the woman
Who steals the goose from off the common.
But leaves the greater villain loose
Who steals the common from off the goose.

We have to put these things into perspective. I raised the fact that I understood why white-collar criminals were often sent off to country clubs instead of to real prisons: the real prison cells are full of some young aboriginal guys who have stolen a loaf of bread to feed their family, speaking figuratively. There is no room because of the appalling overrepresentation of aboriginal people in our prison system.

I recently read a book by Pierre Berton, about 1967, the last time Canada was happy. He talks about the Kingston Penitentiary, the women's penitentiary in your own riding of Kingston and the Islands, Mr. Speaker.

I challenge you, Mr. Speaker, to guess the percentage of inmates who were aboriginal women in the Kingston Penitentiary in the year 1967. Some might say 50%, which would be shocking, or 60%, but no, it was 100%. All of them, every single prisoner in that penitentiary was an aboriginal woman in that particular snapshot in time. When they represent 4% of the population, to have 100% of the prison full of aboriginal women means we have an appalling and embarrassing overrepresentation and we are punishing property crimes and even crimes that often are not violent with real prison time while we are letting white-collar criminals walk free. They get a hearty slap on the back and a handshake when they show these big rates of return to a privileged few, but they are actually ripping off thousands of Canadians. It is about time they went to prison, and they can rot there as far as I am concerned.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:25 a.m.
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Conservative

Dick Harris Cariboo—Prince George, BC

Mr. Speaker, I am certainly glad I got over my recent illness in time to come back and listen to the speech of the member for Winnipeg Centre this morning.

While I would like to congratulate him and his colleagues for supporting this bill, in his presentation he is being a little unfair to the vast numbers of people who are accountants, lawyers, financial advisers and people who work in banks. The aspersion that he is casting in his presentation is that they are all crooks. That is most unfair. In any sector, we will find a small percentage of people who in fact like to work outside the law, which is a nice way of putting it, but we cannot paint everybody with the same brush, so I think he was unfair there.

I have a huge question though. The member for Winnipeg Centre and his colleagues have stood in this House and opposed mandatory sentences for crimes such as child molestation, murder and other heinous crimes such as those. They have opposed mandatory sentences when we have brought them forward, and they have filibustered bills that we have had in committee to get tough and impose mandatory sentences on those who commit crimes such as these, yet they stand today and appear to unanimously support mandatory sentences for white-collar crimes.

While we thank them for their support in this bill, there is a strange contrast between them supporting mandatory sentences for white-collar crimes but resisting and opposing so strongly mandatory sentences for people in our society who molest children, who commit sexual assaults against women, who murder people, who rape people, or who injure people severely through aggravated assault.

I wonder if the member could just stand and tell us why he would support mandatory sentences for white-collars crimes but not for these other heinous crimes that I have just mentioned. His party has opposed mandatory sentences at every single turn.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:25 a.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, to set the record straight, we voted in favour of every piece of legislation he just cited. The only place where we found fault was that lumped into the mandatory minimum sentences, they also included theft over $5,000, which means if that some teenager were to steal a car worth $5,001, that crime would fall under this category for mandatory minimum sentences. Nobody in their right mind would object to sentences for certain heinous violations that he outlined with great sensation.

The second thing is that we do not really need more apologists for the big banks in Ottawa here. They have plenty of champions.

The one thing for which I will give due credit to the former prime minister, Jean Chrétien, is that he opened the door for the legislation that we are seeing today on while-collar crime, which would put white-collar criminals in jail, when he banned political contributions from businesses, unions and corporations under Bill C-24. It was no longer necessary to suckhole to Bay Street. It was no longer necessary to treat bankers with kid gloves, because the bankers used to be the biggest donors to both the Liberal Party and the Conservative Party. The Liberal Party, to its credit, decided to end that.

Nobody should be able to buy an election. Nobody should be able to buy public policy. Nobody should be able to buy soft sentencing for white-collar criminals.

Now there is nothing stopping us from treating white-collar criminals as what they are, a scourge on society who do far more damage, one could argue, than the kid who steals the hubcaps off a BMW. The guy who drives that BMW might be guilty of far more heinous offences. We should reserve a jail sentence for him, not just for the kid who steals the hubcaps.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:30 a.m.
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Liberal

Scott Simms Bonavista—Gander—Grand Falls—Windsor, NL

Mr. Speaker, I want to ask the member a specific question. He mentioned some amendments that he was bringing forward. Some of them involved the Criminal Code and sanctions for those who commit environmental offences.

I would like to describe an event that happened in my riding. I want to explore his amendment and how it would take effect and be implemented. In one particular case, land in the town of Buchans was contaminated with high amounts of lead. AbitibiBowater is responsible for that and they are going through the process of remediation.

How would his amendment affect that particular company, which affected the land on which the people of Buchan live?

Retribution on Behalf of Victims of White Collar Crime Act
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October 23rd, 2009 / 10:30 a.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, that is exactly what I intended by encouraging the Conservative government to expand this notion of white-collar crime and mandatory minimums to include those who commit environmental offences, who offend mother earth.

I concur with him that the CEO and board of directors should be accountable for the present and past activity of the company that they represent. This is a board of directors issue. There is a fiduciary obligation to watch over the financial well-being of a company, but there is also a duty and obligation to ensure that environmental laws are not violated.

The asbestos industry is a perfect example. There was a big asbestos mine in Newfoundland. As far as I am concerned, the asbestos cartel has gotten away with murder in this country for the better part of a century. The current board of directors of W. R. Grace and LAB Chrysotile in Quebec should be hauled up before a court of law and charged with criminal violations for contaminating most of the country. They should have mandatory minimum jail sentences imposed on them, because they have known full well since the 1920s that all asbestos kills. Yet, the federal government has supported the asbestos industry. The Canadian government has demonstrated some irrational affinity for asbestos year after year.

I look forward to the day when some federal government has the courage to stand up and challenge that kind of environmental degradation, which has affected the health and well-being of so many communities. The asbestos mine that I worked in closed due to normal market forces.

The asbestos industry that remains in Quebec is still artificially supported and propped up by cowardly federal governments that will not do the honourable thing, and shut that appalling industry down and charge the perpetrators with the criminal offence of putting the health and well-being of Canadians at risk year after year. That is an absolutely appropriate use of mandatory minimum jail sentences. I thank my colleague for asking the question.

Retribution on Behalf of Victims of White Collar Crime Act
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October 23rd, 2009 / 10:30 a.m.
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NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, the government is certainly raising false hopes with the public when it suggests that this bill is going to require restitution for victims.

We all know that these white-collar criminals spirit the money out to tax havens in the Cayman Islands, Panama and other places. By the time these Ponzi schemes are broken and the white-collar criminals are caught, the money is all gone.

So why should we hold out hope? It is a good idea to have it in the bill, but to emphasize that people are somehow going to get their money back is to delude and misrepresent the bill to the people of Canada.

Retribution on Behalf of Victims of White Collar Crime Act
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October 23rd, 2009 / 10:35 a.m.
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NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, some necessary prerequisites should be put in place in concert with passing this bill. One of those is to plug the offshore tax haven loopholes that exist so that these characters, after they serve their mandatory sentence, cannot spirit their money offshore and then simply enjoy the hundreds of millions of dollars that they have stolen from Canadians.

We have been calling for years to have the federal government plug the last offshore tax havens. The former Prime Minister of Canada eliminated 11 of these tax treaties. He left in place the one tax haven where he himself had 13 dummy shell companies for Canada Steamship Lines.

It is about time that we closed those tax havens too so that we can get access and perhaps reimburse some of the people who have been cheated, as well as punish the offenders.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:35 a.m.
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Charlesbourg—Haute-Saint-Charles
Québec

Conservative

Daniel Petit Parliamentary Secretary to the Minister of Justice

Mr. Speaker, I am very pleased to have the opportunity to speak on the subject of Bill C-52, An Act to amend the Criminal Code (sentencing for fraud). This bill contains a number of provisions that are designed to ensure that people who devise and carry out serious fraud offences receive tougher sentences.

The objective of this bill is clear and simple. It would amend the Criminal Code to improve the justice system's response to the sort of large-scale fraud we have been hearing about so much lately.

The bill would send a message to those who think they can outsmart Canadians and dupe them into handing over their hard-earned savings. It would make clear that fraud is a serious crime for which there are serious consequences.

It is also designed to improve the responsiveness of the justice system for victims of fraud. These proposed measures would send a strong message to the victims of fraud that the crimes committed against them are serious and the harms they suffer will be taken into account and addressed to the greatest degree possible.

Overall, the measures in this bill would do much to increase Canadian's confidence in the justice system.

Before I describe the measures in the bill, it is worthwhile to consider the current state of the law. The Criminal Code already addresses all known forms of white collar crime, from security related frauds, such as insider trading and accounting frauds that overstate the value of securities issued to shareholders and investors, to mass marketing fraud, theft, bribery and forgery, to name a few of the offences that may apply to any given set of facts.

The maximum penalties set out in the code are high. In particular, for fraud with a value over $5,000, the maximum term of imprisonment is 14 years. This is the highest maximum penalty in the code, short of life imprisonment, obviously.

Also, mandatory aggravating factors for fraud offences are already in place. They require sentencing courts to increase the penalty imposed to reflect, for example, where the value of the fraud exceeds $1 million, the offence involves a large number of victims and, in committing the offence, the offender took advantage of the high regard in which he or she was held in the community.

Our courts have clearly stated that for large scale frauds, deterrents and denunciation are the most pressing objectives in the sentencing process. The courts have been clear that a serious penitentiary sentence must be imposed in large scale frauds. We routinely see sentences in the four to seven year range for large scale frauds. Most recently, of course, Vincent Lacroix was given a 13-year sentence for the massive security fraud he perpetrated in my province, Quebec, just a few years ago.

The courts are starting to take these frauds seriously, but this government believes that still more can be done to strengthen the Criminal Code's responses in these cases to send a clear message that Parliament is in agreement with this trend toward tougher sentencing.

To this end, Bill C-52 proposes reforms that are designed to ensure that sentences imposed in these cases adequately reflect the severe impact they have on the lives of the victims, many of whom have lost their life savings or retirement savings.

One measure in this bill that is particularly significant is a new mandatory minimum penalty of two years for large scale frauds. As I mentioned, more and more courts across the country are recognizing the devastation that can be caused by large scale frauds and have emphasized that deterrents and denunciation must be front and centre in sentencing offenders in these cases.

The government wants to carry this message forward and clearly establish a minimum penalty for frauds with a value over $1 million. Many frauds cheat Canadians out of significantly more than $1 million. We have read recently of frauds in the hundreds of millions, such as the case in Alberta.

But the line must be drawn somewhere, and this government believes that if a person orchestrates and carries out a fraud of at least $1 million, this is a very serious crime that demands a term of imprisonment of at least two years.

Of course, this two year mandatory jail term is a floor, not a ceiling. If Parliament declares that a $1 million fraud must result in at least two years in prison, then, naturally, larger frauds will result in even higher sentences. The application of aggravating factors to the sentencing process will also help guide the process for determining the ultimate sentence.

The Criminal Code already contains several aggravating factors that can be applied to a fraud conviction to enhance the sentence.

The bill would add several more aggravating factors, such as: if the fraud had a particularly significant impact on the victims taking into account their personal characteristics such as age, financial situation and health; if the fraud was significant in its complexity or duration; if the offender failed to comply with applicable licensing rules; and if the offender tried to conceal or destroy documents which recorded the fraud or the disbursements of the proceeds.

These aggravating factors reflect various aspects of fraud that are deeply troubling. The clearer Parliament can be with the courts about what these factors are, the more accurately sentences will reflect the true nature of the crime.

Another important measure in the bill is the introduction of a power which would enable the sentencing court to order that a person convicted of fraud be prohibited from having control or authority over another person's money or real property. This prohibition order can be for any duration the court considers appropriate. Violating a prohibition order will be an offence.

This measure is aimed at preventing future crime. The idea is to prevent the offender from having the opportunity to commit another fraud. There are several prohibition orders already in the Criminal Code, such as the one which can be imposed on individuals convicted of sexual offences against children, prohibiting them, among other things, from working in schools or other places where they would be in a position of trust or authority over young people.

I would like to devote a few minutes to the proposals in the bill which address the specific concerns of victims of fraud. Consideration of, and support for, victims of crime has been a hallmark of this government, and this legislation is no exception.

There are two measures in the bill that touch directly on the interests of victims: our proposals on restitution and on community impact statements.

Let me begin with restitution. Restitution is defined as the return or restoration of some specific thing to its rightful owner. It is distinct from compensation which, in the Canadian legal system, is a scheme of payments managed and made by provincial or territorial governments to assist victims of crime.

Restitution is the payment by the offender of an amount established by the court. The Criminal Code currently provides for restitution for criminal offences including: damages for the loss or destruction of property, bodily or psychological harm, bodily harm or threat to a spouse or child.

An order for restitution is made during the sentencing hearing of a convicted offender. It is part of the overall sentence provided to an offender as a stand-alone measure or as part of a prohibition order or a conditional sentence.

Restitution orders are particularly appropriate in the case of fraud offences. In several recent high-profile cases, we heard media accounts of thousands of dollars taken by offenders. These shocking cases of duplicity have deprived many innocent Canadians of hard-earned savings, and in truly awful cases, of retirement funds. It will be the judge's decision in each trial as to whether restitution is appropriate.

Our proposals provide that in the case of fraud, the sentencing judge must consider an order of restitution as part of the overall sentence for the offender.

The court must inquire of the Crown if reasonable steps have been taken to provide victims with the opportunity to indicate whether they are seeking restitution. This step will ensure that sentencing cannot happen without victims having had the opportunity to speak to the Crown and establish their losses.

To further assist victims, our proposals include an optional form to assist victims in setting out their losses. The form identifies the victim and their losses and clarifies that the victim needs to provide receipts, bills or estimates in order to assist the court in making the restitution order. In all cases, these losses must be readily ascertainable. The courts have found that it is not possible to make an order when the amount is not readily ascertainable or when it is difficult to apportion the amount among several victims.

Taken together, these proposals would increase the likelihood of orders of restitution being made. It is our hope that these proposals will increase the responsiveness of the legal system to victims of fraud.

I would note that the Federal Ombudsman for Victims of Crime recommended improvements to the restitution scheme in one of his first recommendations to the Minister of Justice. These proposals, while not as exhaustive as those the ombudsman urged, are steps along the road to improving the experience of victims in the justice system.

The second element of the bill relating to victim issues is the proposal to create community impact statements.

The Criminal Code currently provides that judges may consider a statement made by a victim of a crime, which is known as a “victim impact statement”. The purpose of this provision is to provide the sentencing judge with additional information on the harm or loss suffered as a result of the offence. This statement is delivered in the context of a convicted offender's sentencing hearing. Jurisprudence has indicated that the victim impact statement serves three purposes: to educate the offender on the consequences of her or his actions, which may have some rehabilitative effect; to provide a sense of catharsis for victims; and to provide sentencing judges with the information on the impact or effect of the offence. The provisions in this bill to create a community impact statement for fraud offences share these three purposes.

The Code indicates that the victim impact statement should describe the harm done to or loss suffered by the victim. The Criminal Code details the procedure for presenting the victim impact statement, which includes a requirement that the statement be in writing and be shared with the Crown and the defence.

The victim impact statement provisions of the Code also provide that the court shall consider any other evidence concerning the victim for the purpose of determining the sentence. The courts have given the term “victim” a broad interpretation, so that people other than the direct victim, including communities, can provide victim impact statements. Victim impact statements made on behalf of communities that have been considered by the courts include: a victim impact statement made by a synagogue on behalf of the congregation in an arson case and a victim impact statement from a first nations band describing the impact of the theft of band money and the murder of a first nations child on a first nations community. These cases and others offer examples of the courts' recognition that communities are affected by crime.

Our proposal would make the recognition clearer in the law. We are proposing that, when a court is sentencing an offender for the offence of fraud, the court may consider a statement made by a community describing the loss or harm to the community. The statement must be in writing, identify the members of the community, specify that the person can speak on behalf of the community and be shared with the Crown and the defence.

It is our view that these community impact statements will affirm several principles of sentencing that are laid out in the Criminal Code: denunciation, deterrence and rehabilitation.

A community impact statement will allow a community to express publicly, and to the offender directly, the loss or harm that has been suffered to allow the community to begin a rebuilding and healing process. It will show the community denunciation of the conduct of the offender. It will assist offenders in their rehabilitation to understand the consequences of their actions.

In sum, this bill would help to improve the responsiveness of the criminal process for victims of fraud. It would require the sentencing court to consider if restitution should be ordered and it would permit the court to receive a community impact statement in cases where a community, in addition to individuals, has suffered from the fraud.

This bill represents an important step forward toward improving the current criminal justice system response to serious fraud. By creating a mandatory minimum sentence for fraud over $1 million, adding aggravating factors for sentencing that highlight the serious consequences of fraud, introducing a prohibition order as part of a sentence, and requiring mandatory consideration of restitution for victims, this bill represents a complete package of reforms to reflect the seriousness of fraud offences for communities and individuals.

For these reasons, I urge that all members support this bill. This bill offers members an opportunity to show their unequivocal support for victims of fraud crimes. Victims of crime deserve no less than the respect of the House. I urge all members to support this bill and send it to committee for study.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:50 a.m.
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Liberal

Keith Martin Esquimalt—Juan de Fuca, BC

Mr. Speaker, I have a question for my colleague in terms of the economic tsunami that we all saw and what appeared to be the deplorable behaviour by industry leaders. There seemed to be a failure on the part of the board of directors in terms of the oversight mechanism they must engage in, which is their responsibility with respect to their companies.

Does the government have any plans to provide guidelines or mechanisms in terms of trying to ensure that boards of directors are accountable and responsible for executing the duties they failed to execute in many cases during the tsunami?

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:50 a.m.
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Conservative

Daniel Petit Charlesbourg—Haute-Saint-Charles, QC

Through you, Mr. Speaker, I will answer my hon. colleague's question.

Let me start by saying that I find this to be a very good question. Both abroad and within our borders, individuals having authority over the money of others have indeed been seen to engage in embezzlement.

I would point out that we are living in a country governed by law, however, and that in many provinces, including mine, numerous companies fall under provincial jurisdiction, while others fall under federal jurisdiction.

Currently, in each province, there is a slew of securities commissions, and this forces us to seek a balance and to closely consider how the system will work and how these white-collar criminals will be caught. While this is the general term used, we cannot paint everyone with the same brush.

Bill C-52 will at least open a door for dealing with such individuals. Regarding Vincent Lacroix, for instance, it was pointed out that he had a government licence and an established office, which meant that he met the requirements for getting into that line of business. But the fact remains that this man defrauded 9,200 people. He has fleeced 9,200 people. He is currently being prosecuted and was, in fact, sentenced to 13 years of imprisonment. That is a stiff sentence, in my opinion, considering that the next stiffest sentence is life imprisonment.

I therefore think that Bill C-52 will provide greater control over these types of situations.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:55 a.m.
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Bloc

Serge Cardin Sherbrooke, QC

Mr. Speaker, the Conservative member referred to Vincent Lacroix, who allegedly swindled 9,200 people in fraud estimated to amount to $140 million. He reports, and seems pleased at it, that the offender has been sentenced to 13 years and some months in prison. However, what he neglected to say is that 13 years, with parole after serving one sixth of the sentence, amounts to two years and a few months.

We now have a bill that indicates that the sentence for fraud in the amount of $1 million or more is a minimum of two years. As the hon. member intimated that he knows his bill inside and out and was aware of all the repercussions, I would like him to tell us what Vincent Lacroix, under his bill, would have had as a mandatory minimum sentence.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 10:55 a.m.
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Conservative

Daniel Petit Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, through you, we will answer our Bloc colleague.

He says that Vincent Lacroix could be released early. Indeed, the old system allows for that. At the one sixth point of the sentence, it is accelerated parole, at the one third point, it is parole and at the two thirds point, it is statutory release.

It is important that this bill and what is called reform of the Criminal Code be taken as a whole. That is why, today, we announced — and we have known it for at least a day,— that pre-trial custody will now count as a year for a year. The matter of parole after one sixth of a sentence has been served cannot be resolved if the problem at the beginning of the sentencing process is not resolved. So, first things first. Previously, if an individual was sentenced or awaiting trial for six months, he got a two for one credit for time served. If the individual was sentenced to six years' imprisonment, which seemed enormous at the time, he served a year and was released. This is called revolving doors. This is what we wanted to correct. So the problems at the beginning of the process must be settled, then we will deal with the middle and the end of the sentencing process.

Our Minister of Public Safety has announced that he will table a bill in this regard, which would resolve the problem of the one sixth of sentences that my Bloc colleague is talking about.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 12:10 p.m.
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Bloc

Serge Cardin Sherbrooke, QC

Madam Speaker, I would like to ask a question of the member for Charlesbourg—Haute-Saint-Charles.

He said earlier that we had to start somewhere. So we are starting with a two-year sentence for a $1 million fraud. However, the Conservatives do not want to commit immediately either to abolishing the right to parole after one-sixth of the sentence has been served or to eliminating tax havens. But the member mentioned on several occasions the two-year mandatory sentence for a $1 million fraud.

I would like the member to clarify one thing for me. The government is talking about a two-year mandatory sentence, but it is not abolishing the right to be released after one-sixth of the sentence has been served. Can he tell me where exactly in this bill it states clearly that anyone receiving this two-year mandatory sentence—and the word “mandatory” should also be defined in the legislation—will not be released after serving one-sixth of the sentence? Basically, a 24-month sentence for a $2 million fraud would be reduced to 4 months.

I would like the member to tell me where exactly I should look in the bill to be certain that this two-year mandatory minimum sentence will not shrink to a mere four months.

Retribution on Behalf of Victims of White Collar Crime Act
Government Orders

October 23rd, 2009 / 12:10 p.m.
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Charlesbourg—Haute-Saint-Charles
Québec

Conservative

Daniel Petit Parliamentary Secretary to the Minister of Justice

Through you, Madam Speaker, I will answer my hon. colleague's question, which was a fair and appropriate one.

Here is how things work in the parliamentary system. First, the minister of Justice introduces legislation. That is how Bill C-52 was introduced. Then, another minister, namely the minister of Public Safety, has authority with respect to what is called detention. When a judge hands down a sentence, the minister of Public Safety is the one who steps in and has jurisdiction, at the parliamentary level, to introduce this kind of legislation.

The member raised the issue of parole after one sixth of the sentence. I will suggest to him that, for one thing, what the Bloc Québécois introduced was a really incomplete bill that cannot be implemented or would be difficult to implement. So, we have to take a more serious approach and introduce legislation that will deal with parole after one sixth of the sentence and, after both bills have received royal assent, will actually apply to the various individuals wo will be convicted. Then, after parole after one sixth of the sentence is repealed, they will serve a two-year sentence. This is a baseline, however, which means that the judge may go higher and sentence them to more than two years, for as long as four, five, six or seven years.