Bill C-21 (Historical)

Standing up for Victims of White Collar Crime Act

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

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.

Standing up for Victims of White Collar Crime Act

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, I take note of your statement. I also take note of the fact that you did not declare it to be unparliamentary. You stated that it comes close to the line, but you did not make a statement that using the term untruth, with regard to a member, is unparliamentary. I take note of that.

I will simply conclude my speech on Bill C-21 by stating again that the official opposition supported it. We demanded, asked, requested and begged the government to bring it forward in the last session of the 40th Parliament. We attempted to work with the government to get it through the House of Commons quickly. The government and the Prime Minister, in their wisdom, decided to kill the bill through prorogation. They waited, after the throne speech, over 60 days before reintroducing the exact bill, now under the label of Bill C-21, and then let the bill sit at first reading for over 200 days before finally proposing second reading debate.

It is clear. The official opposition supports this bill. We will be voting in favour of this bill.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, on the same point of order, the use of the term “untruth” is not unparliamentary. It is very factual. I did not accuse that member of lying. Had I done so, that would have been unparliamentary.

What I did say is that the member and any member of the Conservative Party and government who claims, in this House or outside of this House, that the official opposition has in any way opposed, in the past or today, Bill C-21, or in any way delayed Bill C-21, is saying an untruth.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, this bill is long overdue. The government introduced this bill in the previous session of the 40th Parliament and played political games with it. The government killed this bill with prorogation. Basically, the Prime Minister decided that prorogation would be good for his party and his government.

After the throne speech was read on March 3 and the House resumed sitting, the government waited 60 days before reintroducing the same bill. It was identical to the bill that came before the House in the second session of the 40th Parliament. Not one comma was changed. Every dot on every i was the same. Not a single letter or word was changed. It was identical. This Conservative government nevertheless waited about 60 days after the throne speech before reintroducing the bill. The Conservatives finally reintroduced it at first reading. Those familiar with the House rules know that only the government can introduce a bill at second reading. Neither the official opposition, nor the Bloc Québécois, nor the NDP can do so. Only the government can. So how long did it take the government to propose debate at second reading of Bill C-21on white collar crime? The government boasts that it alone looks after the victims, believes that victims' needs are important, and is working on criminal justice.

The government left Bill C-21 at first reading for over 200 days. During that time, who was asking, praying, urging and begging the government to move debate at second reading? The victims. The official opposition. The Bloc Québécois. The NDP.

I have not heard a single Conservative member publicly ask his or her government to stop dragging its feet with Bill C-21 at first reading and to move forward with a debate at second reading. I have not heard one single Conservative member publicly demand that, but I heard the opposition demand it. I heard the Bloc members calling for it. I heard NDP members calling for it. I also heard many victims wondering why this Conservative government, which claims that victims and Bill C-21 are important, was not following through.

The Minister of Justice used every possible opportunity this weekend to say that there were criminal justice bills that absolutely had to be passed in the House and that he urged the opposition to stop opposing these bills. We just heard the same things from the chair of the Standing Committee on Justice and Human Rights, who rose to ask a question of the Parliamentary Secretary to the Minister of Justice. He asked the parliamentary secretary to explain why the opposition was opposed to this bill. That is not true. The opposition has always supported the government's desire to act quickly and effectively with respect to white collar crime and fraud. During the other session of the 40th Parliament, we tried to work with this government to ensure that this bill would pass.

However, the government and the Prime Minister decided to kill this bill by proroguing the House and Parliament. Then, when the House resumed, they waited some 60 days before reintroducing it. And once it was introduced, they waited more than 200 days to move debate at second reading.

How many days did the House spend debating Bill C-21 at second reading after having waited more than 200 days to debate it at second reading? The House took only two days to debate this bill because the opposition parties, notably the official opposition, want this bill to become law in our country. The opposition does not oppose this bill, and none of the three opposition parties slowed down the process of passing this bill. It was the government.

I believe it is important to remind the members of these facts because I am not making this up. Anyone who has a calendar can figure this out based on the date that the government prorogued the House in December 2009. The prorogation lasted nearly two and a half months, and the House resumed its work on March 3, 2010, with the Speech from the Throne. But it was not until about 60 days later that the government reintroduced its bill. Then the government waited more than 200 days to debate it at second reading—if my memory serves me correctly, it was 216 days. I know that it was more than 200 days; I am quite certain about that.

And now for the content of the bill. The bill establishes mandatory minimum sentences for those found guilty of fraud. That is what victims were calling for. Victims called for other things as well, but the government, in its wisdom, decided not to include them in this bill.

The victims were asking for two things. One, they wanted to see stiffer sentencing for white collar criminals; and the government, with its mandatory minimum sentencing of two years for criminal offences that are what we would deem white collar crime, responds to the victims' request.

However, the victims had a second request. The victims wanted the government to eliminate accelerated parole review for white collar criminals. The bill does not address that at all. This is something that opposition parties have been asking for, for several years now, and the government has not addressed it. It does not address it in the bill.

Liberals attempted to bring an amendment to the bill that would have amended the Corrections and Conditional Release Act in order to eliminate the accelerated parole review for the criminal offences that are dealt with in Bill C-21. The chair of the committee ruled it out of order because nothing in Bill C-21 dealt with the conditional sentencing and parole legislation.

I challenged the chair's ruling. However, I have to admit that his ruling was correct because my amendment, which would have eliminated the one-sixth accelerated parole review for the offences contained in this particular legislation, was in fact beyond the scope of the bill.

The chair ruled my amendment out of order. I challenged the chair, and unfortunately the Conservatives, the Bloc and the NDP upheld the chair's ruling.

There is a piece of legislation in front of the public safety committee of the House of Commons that deals with the issue of accelerated parole review. However, that as well is a bill that the government has been playing political games with and has been holding up, not moving second debate reading and letting it sit on the order paper at first reading for days and days.

We believe the government must act to respond to the request of victims, and not just the victims but of a variety of civil shareholders, that the one-sixth accelerated parole be removed, be eliminated, and not just for the white collar criminal offences but for virtually every offence, if not indeed all offences. In fact, one could describe it as being an offence to the sensibilities of Canadians and of our criminal justice system.

There is another point of white collar crime that the bill does not address. That is the issue that it does not in any way, shape or form attach these criminal offences to institutions.

I would like to read an article by Darcy Henton that was published in the Edmonton Journal on May 5, 2010, headlined “Alberta wary of white-crime bill”. It states:

A white-collar crime bill reintroduced by the federal Conservatives this week received a lukewarm reception Tuesday in Alberta from both a financial crime crusader and a fraud victim.

The justice bill, which had to be reintroduced after it died on the order paper when the prime minister prorogued Parliament last winter, sets a mandatory minimum two-year sentence for frauds over $1 million.

The bill also requires judges to look at several aggravating factors that could increase the sentence and to consider victim impact statements and restitution.

Retired investment broker Larry Elford, who advocates on behalf of investors, said the new bill still appears to contain a loophole that exempts it from being applied to investment institutions.

“It's a wonderful gift to the investment industry,” he said. “It would exempt the largest fraudsters in Canada. I can't understand why they would reintroduce the law with the same loophole.”

Elford said the law wouldn't apply to corporations like Goldman Sachs which is currently the subject of a civil fraud suit brought on by the Securities and Exchange Commission, the national securities regulatory authority in the U.S.

“Any Bay Street operator could sell any product in any fraudulent and misleading manner and this bill would not apply,” Elford said.

Edmontonian Jason Cowan has been pressing for tougher white-collar crime laws since he and a partner were allegedly defrauded of more than $2 million in 1996.

“I think it's absolutely necessary that there are some checks and balances,” he said. “These white-collar criminals are getting off all the time.”

[The federal justice minister] said the legislation will make jail mandatory for fraudsters who bilk their victims out of more than $1 million.

“Our government is standing up for victims of white-collar crime,” he said when the bill was reintroduced Monday.

The justice minister then waited over 200 days before moving second reading debate. That is really what I would call standing up for victims of crime: using their misery, using their hardship as a political ball game. It is shameful.

The official opposition supports this bill. We have from the outset. We have never hidden that. Every single member of the Conservative Party and every single member of that Conservative government knows that the official opposition supports the bill. We supported it in the last session of the 40th Parliament. We made it clear. We were very public about our support. So for any member of the Conservative Party to rise in this House, or outside of the House, and claim that the opposition is opposing this bill or holding up this bill is simply an untruth. Pure and simple, it is an untruth, and no Canadian should believe that Conservative MP who rises in this House, or outside of the House, to claim that the official opposition does not support and has not supported Bill C-21, the white-collar crime bill.

Canadians should then ask themselves, if a Conservative, a member of Parliament, is willing to tell an untruth on something that is so clearly not true and easily refuted, what else are they telling untruths about? What other issues are they not telling the truth about? What other issues are they spreading untruths about? Canadians should ask themselves that question, because why would someone tell an untruth on the issue of claiming that the opposition, the official opposition, is opposing or has opposed this bill or attempted to hold up this bill when the facts clearly show that the government has held up its own bill in order to play political games with victims of crimes? That is despicable. It is scurrilous. It is deplorable.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Madam Speaker, in the course of the hearings in the justice committee on Bill C-21, we had witnesses come forward who were basically saying that this was going to do little, if anything, to give our prosecutors and police the tools to effectively fight white collar crime.

Witnesses pointed to a recent story out of Toronto in particular. An individual had been accused of a Ponzi scheme, taking somewhere between $23 million and $27 million. About three weeks ago, the prosecutors in Toronto opted to withdraw all of the charges in spite of the fact that all of this money had gone missing from almost 100 people.

The committee heard that that was not a unique set of circumstances. The point was that we can pass all the laws we want, but we need to give our police and prosecutors the tools to prosecute these individuals. When the prosecutors have to decide between prosecuting these kinds of individuals and somebody who has committed a semi-violent crime, they are always going to opt to spend their time on that rather than on these because of the length of time it takes to prosecute.

I wonder if the member agrees with me that that is a good summary of the evidence. Is his government going to do anything about providing additional resources to our police and prosecutors in order to be able to effectively prosecute?

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in this debate at third reading of Bill C-21. The provisions of this bill would amend the Criminal Code to strengthen sentences in cases of fraud.

In our entire legislative arsenal to combat white collar crime, the charge of fraud is the most important weapon. It criminalizes a wide range of acts of deception. That said, there are two very general elements that characterize fraud, and the general nature of these elements is what makes the charge of fraud the most effective tool to combat white collar crimes.

The first element is deception or some other form of dishonest conduct, which can exist in all kinds of situations and take on many different forms. The second element is a financial loss, which includes not only the actual loss of money or other valuables, but also the risk of such a loss.

The combination of these two elements constitutes a case of fraud. Essentially, fraud exists when someone uses deception to get another person to hand over their money. Theft involves taking someone's property without permission, while fraud exists when a thief is cunning or smooth enough to convince the victim to voluntarily hand over their property. This deception exacerbates the financial loss since the victims feel ashamed and humiliated because they feel as though they contributed to their own misfortune.

The broad and flexible definition of fraud can also apply to securities fraud, such as accounting fraud based on overestimating the value of securities to shareholders and investors, incorrect declarations regarding a company's financial situation and Ponzi schemes, which we have seen recently in Canada and the United States.

Fraud charges are also an effective tool to combat other types of fraud dealing with mass marketing, mortgages, property titles, home renovation, health care and other types of insurance, and also taxes, not to mention the scams recently found on the Internet, for example, on eBay, where an article for sale is never sent to the purchaser even after it has been paid for.

The various measures contained in Bill C-21 for determining sentences for fraudsters aim to ensure that the crimes they commit are taken seriously. Currently, the maximum prison sentence for fraud is 14 years. This is the second highest maximum penalty in the Criminal Code, after life imprisonment. In that sense, it is a satisfactory maximum. However, it is possible to do more so that sentences correspond better to the devastating effects that fraud can have on its victims.

To begin, Bill C-21 establishes a mandatory minimum sentence for fraud over $1 million. Currently, the value of the fraud is considered to be an aggravating factor, which means that the sentence should be increased according to existing maximum sentences. As a result of Bill C-21, this aggravating factor will automatically lead—yes, automatically—to a mandatory sentence of at least two years. Whether it was a single fraud or a series of them, only a complex, well-orchestrated and well-executed scheme results in more than $1 million in losses, and it has likely included other types of crime, such as falsifying documents.

Fraud resulting in such significant losses must be considered a serious crime. The proposed two-year mandatory sentence is simply a starting point—yes, a starting point—that allows for the appropriate sentence to be determined. In fact, sentences for major fraud will also take into account all the other objectionable aspects of the offence, many of which are considered to be aggravating circumstances under section 380.1 of the Criminal Code.

Bill C-21 would add these new aggravating circumstances: the magnitude, complexity, duration or degree of planning of the fraud committed was significant; the fact that the offence had a significant impact on the victims, given their personal circumstances; the fact that the offender did not comply with rules or licensing requirements; and the fact that the offender concealed or destroyed relevant records.

In addition to the aggravating circumstances already set out under section 380.1 of the Criminal Code and the general circumstances set out in section 718.2, sentencing courts will take these new aggravating circumstances into consideration in order to determine a sentence that reflects the specific facts of each case.

Bill C-21 would also create a new prohibition order to prevent individuals convicted of fraud from reoffending. Specifically, it would allow the courts, when sentencing an offender convicted of fraud, to prohibit him from having authority over the real property, money or valuable security of others. That makes good sense.

The court would set what it considers an appropriate prohibition period. It would be an offence to violate such an order. The Criminal Code already provides for a prohibition order to prevent recidivism among individuals convicted of designated sexual offences involving children and child abduction offences. The proposed new prohibition order would offer the same protection, and the judge would have discretionary authority to make such an order. The judge would not make the order before the prosecution and the defence had the opportunity to comment on the impact such an order could have on the offender's ability to earn a living and other relevant considerations. In addition, the offender or the Crown could ask the court to vary the order.

Bill C-21 would also improve how the justice system meets the needs of fraud victims, with provisions on restitution and community impact statements.

At present, under the Criminal Code, the judge can order an offender to compensate victims when the situation warrants in order to offset losses, especially financial ones, suffered as a result of the crime. Bill C-21 goes further by requiring that the judge consider making a restitution order whenever an offender is convicted of fraud. Moreover, the judge would have to ask the Crown whether reasonable steps had been taken to provide the victims with an opportunity to indicate whether they are seeking restitution. The purpose of this measure is to avoid situations where the sentence is handed down before the victims have a chance to indicate that they would like restitution from the offender and to set the amount of their losses.

If the judge were to decide not to make a restitution order, he would have to give reasons for his decision. This should prevent the court from inadvertently disregarding the issue of restitution. What is more, the victims would be able to understand why the judge decided not to order restitution, where applicable.

In its original version, Bill C-21 required that the judge give reasons for his decision every time he decided not to make a restitution order.

For instance, if the victim has not made a request for restitution, the judge could simply indicate that reason in his or her justification. However, in the version amended by the House of Commons' Standing Committee on Justice and Human Rights that we currently have before us, Bill C-21 now only requires a judge to provide reasons for not ordering restitution where the victim has made an application for it. While this may seem logical and inconsequential, it does somewhat diminish the bill’s goal of ensuring that restitution is always considered in fraud cases, even in the rare situation where a victim does not seek restitution, but when restitution could and should be ordered by the judge. However, in order to get this bill passed, we are pleased that the provisions pertaining to restitution can remain in effect despite this minor change.

Bill C-21 also urges judges to consider the impact that fraud can have, not only on individuals, but also on groups and the community. The Criminal Code currently requires courts, when sentencing an offender, to consider victim impact statements describing the harm done to or loss suffered by the victims. In some cases, the courts allow such statements to be submitted on behalf of a community. Bill C-21 would explicitly allow courts to consider a statement made on a community's behalf describing the harm done to or losses suffered by the community when imposing a sentence on an offender found guilty of fraud.

Bill C-21 is but one aspect of this government's wider initiative to improve the criminal justice system's response to major fraud cases. I therefore urge all members here today to support the expeditious passage of Bill C-21.

The House proceeded to the consideration of Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), as reported (with amendment) from the committee.

Business of the House

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I will start with the hon. member's last question first.

The member is right, that was an extremely long question. I pointed out to this place that the Liberals were making it a common practice of writing questions that should be divided into several questions rather than just one. The question that I read into the record of this House took over 15 minutes to read. It is an attempt by the Liberal Party, continuous attempts by the Liberals, to obfuscate, to delay the proceedings of this House and to, quite frankly, impede the ability of government departments to get on with important government legislation.

Mr. Speaker, I hope that you, in your wisdom, will rule on that very important point of order as quickly as possible.

With respect to the business today, we will continue with the Liberal opposition motion and business of supply. Tomorrow we will hopefully complete the final stage of C-30, Response to the Supreme Court of Canada Decision in R. v. Shoker Act. Following Bill C-30, we will call, at report stage, Bill S-6, Serious Time for the Most Serious Crime Act.

On Monday, we will continue with any business not concluded this week, with the addition of Bill C-43, Royal Canadian Mounted Police Modernization Act, and Bill C-12, Democratic Representation Act.

On Tuesday, we would like to complete the third reading stage of Bill C-21, Standing up for Victims of White Collar Crime Act.

Next week, we will also give consideration to any bills that are reported back from committee. Further, if time permits, we would also debate next week Bill C-38, Ensuring the Effective Review of RCMP Civilian Complaints Act; Bill C-50; Bill C-51, Investigative Powers for the 21st Century Act; Bill C-53, Fair and Efficient Criminal Trials Act; and Bill C-19, Political Loans Accountability Act.

Finally, on Tuesday evening, we will have a take-note debate on the trade agreement with the European Union, and on that subject, I would ask my colleague, the chief government whip, to move the appropriate motion.

[John Baird, Conservative, Leader of the Government in the House of Commons and Minister of the Environment]

Mr. Speaker, we will continue today with the opposition day motion by our friends from the New Democratic Party. Pursuant to an order made earlier today, the vote on the NDP motion will be deferred until the end of government orders on Tuesday.

Tomorrow we will consider a great bill proposed by the Minister of Justice, Bill C-22, protecting children from online sexual exploitation. The Minister of Justice has another great bill, Bill C-54, protecting children from sexual predators, which we will then debate. We will then move to Bill C-33, the safer railways act, on which the Minister of State for Transport has done a lot of very good work. Next is Bill C-21, the standing up for victims of white collar crime act, which is another strong justice bill brought forward by the Attorney General of Canada.

Next week we will continue with business from Friday.

I am pleased to report that there are ongoing constructive, and even harmonious, discussions among the parties, so the list of business that I mentioned may change.

Next week, each and every day we will be debating great bills that will do great things for Canada.

Also I will return to the House at a later time to designate the last allotted day.

Justice and Human Rights

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I have the honour to present, in both official languages, the 10th report of the Standing Committee on Justice and Human Rights.

In accordance with its order of reference of Tuesday, October 5, your committee has considered Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), and agreed on Thursday, November 25, to report it with amendment.

[The Chair, Conservative, Ed Fast]

My ruling is actually addressing the parent act rule. I believe it's called the parent act rule. The amendment seeks to amend section 125 of the Corrections and Conditional Release Act.

House of Commons Procedure and Practice, second edition, states at pages 766 to 767 that “an amendment is inadmissible if it proposes to amend a statute that is not before the committee or a section of the parent Act, unless the latter is specifically amended by a clause of the bill”.

Since section 125 of the Corrections and Conditional Release Act is not being amended by Bill C-21, it is inadmissible to propose such an amendment, and therefore the amendment is inadmissible.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I appreciate that, Chair.

It's very simple. My particular amendment, which goes into the Corrections and Conditional Release Act, would ensure that anyone found guilty of the offences that are dealt with in Bill C-21 would not be eligible for release at one-sixth of their sentence, period.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Yes, thank you.

I brought this amendment forward because clause 2 of Bill C-21 says very specifically that:

Section 380 of the Criminal Code is amended by adding the following after subsection (1):

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

Well, if one goes to section 380, subsection 380(1) talks about fraude.

The subsection of the Criminal Code says this:380. (1) Every one who, by deceit, falsehood or other fraudulent means…

I'm sorry. I'm reading with a magnifier because I can barely read this.

It continues:

…whether or not it is a false pretence within the meaning of this act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence…

If we go to subsection 380(2),

as you see, the heading is “affecting public market”.

Subsection 380(2) says:

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

That isn't covered by Bill C-21. I believe that it should be covered. In the previous session of the 40th Parliament, when this bill was originally tabled, we heard from witnesses who were victims, organizations, representatives of organizations representing victims, and law enforcement. I specifically asked if they believed that Bill C-21 covered stock manipulation, etc., which we find in subsection 380(2).

They all thought it did. When I informed them otherwise and actually read out clause 2 of Bill C-52, as I believe it was at that time, they were all surprised. They said they thought it should be very clear that this section on stock manipulation, etc., should be part of Bill C-21. That's the reasoning for bringing forth this amendment.

[The Chair, Conservative, Ed Fast]

I'll reconvene the meeting. We're moving to clause-by-clause on Bill C-21.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed, so I'm calling clause 2.

(On clause 2)

There are three amendments proposed to clause 2. We'll do them in the order in which they fit.

Mr. Comartin, did you want to introduce amendment NDP-1?

[Joseph Groia, Lawyer, Groia & Company, As an Individual]

Thank you.

These are interesting, challenging, and even dangerous times, I would say, in the Canadian capital markets. Never in my 30 years of being involved in the enforcement business of securities offences have I seen as much uncertainty as we're facing today.

I'd like to address just two aspects of Bill C-21. The first is the mandatory sentencing provisions for fraud. The second is restitution provisions.

About the mandatory sentencing provisions, I have three observations. First, they are not necessary. Second, they won't do what you hope they will do. Third, they are counterproductive. I say that having a background as a former head of enforcement at the Ontario Securities Commission and also now as a lawyer who represents both victims of fraud and those sometimes accused of fraud.

Second, I'd like to say a word about the restitution provisions. I believe they are a step in the right direction, but, like Mr. Caylor, I don't think they go far enough, and I would ask this committee to consider perhaps going further than is currently proposed in this bill.

Mandatory sentencing provisions for fraud are not necessary, because the cases you have heard about have all resulted in jail sentences far in excess of a two-year minimum. Mr. Jones was convicted in February of 2010 and received a sentence of 11 years. Vincent Lacroix of Norbourg was convicted in 2009 and received, effectively, a sentence of 18 years. In perhaps one of the most well-known and publicized prosecutions in the last decade, Mr. Drabinsky and Mr. Gottlieb, of Cineplex, received sentences of seven years and six years.

I can tell you that my experience is that judges and prosecutors take white-collar fraud very seriously. Although we call this the Standing up for Victims of White Collar Crime Act, I can tell you that every day in my practice prosecutors are doing exactly that, the best they can and with the resources they have.

Second, a mandatory jail sentence will not solve the problem. If we want to improve the protection of investors in Canada, we need to look at provisions and approaches to this problem that are much more comprehensive than those found in Bill C-21.

I'm encouraged by the efforts of Parliament to move forward with a national securities commission, not because I care about the filing of prospectuses or the raising of capital, but because I think we're long overdue for the introduction of a national enforcement agency that is concerned with the successful detection and prosecution of white-collar crime across the country. I hope that a national securities commission will do what IMET has been unable to do, which is to bring to bear specialized resources that will protect Canadian investors.

Thirdly, mandatory minimum sentences are counterproductive. Chief Justice McRuer said 58 years ago that a mandatory sentence “tends to corrupt the administration of justice by creating a will to circumvent it”. The danger you will need to consider as a committee is that the application of mandatory sentences will do exactly the opposite of what you hope to accomplish.

In the United States of America, which is perhaps the genesis of mandatory sentences and approaches to sentencing guidelines, they are moving away, under the Obama administration, from mandatory sentences and moving towards a Canadian style of system, where we attempt to have justice fit the crime, the victim, and the criminal. I would say that a mandatory approach to this problem is not the solution, and indeed, I worry that if you go forward on that basis, you will make it worse rather than better.

Secondly, the restitutionary powers that are being proposed in many respects are simply an adjunct to what is already required under the Criminal Code. When we look at restitution, there is no more important aspect, as Lincoln said, than ensuring that victims of crime are compensated as a result of their losses. We are talking about the hard-earned savings of families and of Canadians who can't afford to have their college fund or retirement fund stolen by white-collar criminals.

The difficulty, of course, is that by the time law enforcement gets there, we often see that the money is long gone. It resides in secrecy havens or resides elsewhere where it will never be found. When we talk about restitution, what we need to be talking about is a much broader approach to looking at how we compensate injured investors. Saying to the criminal that as part of her sentence she is going to have to pay the money back sounds good, but is completely ineffective.

What I think we have to look at, if we're interested in approaching this problem on a more sympathetic and a more effective basis, is how we get self-regulatory agencies and securities commissions, and other deep pockets that may have been involved in authorizing, permitting, or acquiescing in the activities of the criminals, to contribute towards a solution. I would encourage you, when you look at this bill, to ask what really we want to accomplish, and whether or not we get there under Bill C-21.

Finally, for those who might say that this is an approach to the problem that is soft on crime, my answer would be no, it's an approach to the problem that is smart about policing crime.

Thank you very much. I'd be happy to entertain questions.

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 38 of the Standing Committee on Justice and Human Rights. Today is Thursday, November 25, 2010.

We are welcoming a new temporary member to our committee, Meili Faille.

Welcome.

You have before you the agenda for today. We're beginning our review of Bill C-21, An Act to amend the Criminal Code (sentencing for fraud).

Just so you know, during the second hour of our meeting, or at the end of dealing with our witnesses, we will proceed to clause-by-clause consideration of the bill, as agreed at our last meeting. I trust that you've been able to submit all of your amendments to the clerk. Right now, we have five amendments that we will be dealing with.

To go back to Bill C-21, we have with us two witnesses: Joseph Groia, a lawyer, and Lincoln Caylor, who is with Bennett Jones.

Just as a reminder to those of you are here in the room and have BlackBerrys or other kinds of devices, please turn them to vibrate or turn them off.

Mr. Caylor, would you like to start? You have 10 minutes.