Justice Committee on Sept. 28th, 2009

[Jennifer Stoddart]

Thank you for the question.

As other witnesses have noted, the Government of Canada and Canadian law enforcement agencies are cooperating to ensure that information is shared, not only within Canada but abroad as well, as quickly as possible. Judging from our experience, speed is a factor in this type of crime which increasingly depends on the fact that jurisdictions are divided. Deliberate efforts are made to change jurisdictions. The fact that Americans target Canadians as victims creates problems because it is difficult to prosecute people who are in the United States. The reverse is also true. That is one of the reasons why I have forged ties with the civilian Federal Trade Commission. I want assurances that it is possible to mount a common front to address these problems. This is just one example, but the fact remains that cooperation, public education and a concerted effort are all extremely important.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

What you are saying calls to mind another issue. When I was my party's industry critic, film theft was a problem. It would happen so quickly that the police did not even have time to respond. Films were recorded directly by people in movie theatres. In the blink of an eye, these films were sent abroad.

Isn't it true that these fraud artists are so malicious that it is impossible to intervene quickly enough and that with our legislation, the process is even more protracted?

[Jennifer Stoddart]

Law enforcement agencies may have always thought, based on their experiences, that criminals were one step ahead of them. Clearly the legislative process is out of step with the times, given the speed at which crimes can be committed today. The lack of cooperation and contemporary legislation creates ideal conditions for criminal activities.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

My next comment is directed to the RCMP spokesperson.

In your submission, you talk about how raising public awareness is a key factor. However, I wonder if that it really effective. Education and awareness happen over the long term. What, in your opinion, would truly discourage criminals from committing fraud? Does Bill S-4 really address the problem?

[C/Supt Stephen White]

I don't know if we'll ever be able to deter everyone from becoming involved in these types of criminal activities. In terms of deterrents, what we see in this bill as the big benefit is having offences that will at least enable us to have a greater impact in terms of those individuals who are acquiring, possessing, and trafficking personal identification information for the purpose of eventual additional fraudulent activity. What it will give us is a tool at the front end, which we really don't have now, and that will enable us to intercept and hopefully arrest, prosecute, and impact these organizations at an earlier stage, hopefully even before the fraudulent activity has actually taken place.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

When a person's credit card is cloned, credit unions and banks compensate the victim for any financial losses incurred. Are losses insured by the insurance companies? Aren't companies the ones putting the most pressure on police to resolve the problem? It must cost them quite a bit. A witness talked earlier about the significant costs this represents in Canada since victims of fraud receive a certain amount of compensation.

[The Chair, Conservative, Ed Fast]

Give a very quick answer, please.

[C/Supt Stephen White]

Yes. To my knowledge, it is the credit card companies or the banking institutions that cover the loss for credit card or debit card fraud.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber. You have five minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you very much, Mr. Chair.

Thanks to all the witnesses for your excellent presentations.

I want to pick up on a question for the Canadian Bar Association that my friend Mr. Comartin raised with respect to your objections to clauses 7 and 9. I thought I understood this, but I was confused by some of the dialogue.

In light of the law enforcement exemptions that currently exist in section 25 of the code, why specifically do you advocate that clauses 7 and 9 of Bill S-4 be removed?

[Daniel MacRury]

Because you have the exemptions and the procedural safeguards already in place in section 25. The Canadian Bar Association has been on record in the past not to support any more widening of this area. I think in the circumstances, given that you have section 25, it's not necessary.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'll ask the same question to the RCMP.

I'm assuming you're going to take a different position, as do I, that clauses 7 and 9 do give you the protection you need.

[C/Supt Stephen White]

Yes, that is the protection we are looking for.

Again, our position is that we would prefer to have the exemption in this section rather than in section 25.1, for the same reasons as I mentioned earlier. The use of identification by undercover police officers is a tool they use on a daily ongoing basis; it's not a one-time tool such as pursuing a one-time criminal activity, for which we would seek justification under section 25.1. It's a tool they need. As I said earlier, the whole foundation of an undercover program is being able to use undercover identification. Because it is a daily tool that they require and use, we're looking to support it in its current fashion.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Superintendent White.

In response to a question that you answered for my friend Mr. LeBlanc, and also for Ms. Brunelle, I think, regarding advancements in technology that white collar criminals and organized crime frequently employ, I think your response--and I don't mean to paraphrase you, because I know I'll do it inaccurately--was that law enforcement has a difficult time keeping up to the technological advancements that white collar criminals have access to, and that you're always a step behind, but this is one tool.

I was just wondering if you might be able to comment on this. I know you are not here to testify on Bill C-46, but you might be able to comment on how the interaction of Bill S-4 with Bill C-46 might operate. Bill C-46 is the technical assistance for law enforcement in the 21st century act, if you are familiar with that piece of legislation. How might that facilitate another tool?

[C/Supt Stephen White]

Unfortunately, I'm not familiar enough with it to present a position on how it interacts with Bill S-4 at this point.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

There's a last question I have. I was quite interested when you talked in your presentation about the international identity fraud working group. I guess it goes without saying that this type of criminal activity knows no borders and that I am as likely to be ripped off by a white collar criminal in Europe or Venezuela as I am by one from across the street. Where are we with this whole international prosecution and reciprocal enforcement? If I'm the victim of an identity criminal from another jurisdiction, what recourse do I have or what recourse does Canadian law enforcement have?

[C/Supt Stephen White]

It's very similar to other types of criminal activity. In terms of working with the international community and facilitating criminal investigations, our most successful and used tool is the mutual legal assistance act. That's actually where we would request assistance from a foreign law enforcement agency.

You are right in that a lot of this activity is being perpetrated by individuals and organizations operating outside of Canada. We try to do our best to share information intelligence internationally between law enforcement agencies. As an example, for the next two days, Tuesday and Wednesday, we're meeting with our law enforcement counterparts in the United States and the United Kingdom to actually have this dialogue and to examine and explore further areas for cooperation on and facilitating international criminal investigations.

On a case-by-case basis, if there is a suspect in a foreign country and we need information or evidence from that country, we will proceed with a request under the mutual legal assistance act and treaty with that particular country.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you. I hear the bell, so I assume my time is up.

[The Chair, Conservative, Ed Fast]

Yes.

Mr. Woodworth, for five minutes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

This afternoon I heard the Privacy Commissioner reiterate something I found in a May 28, 2009, statement she made, to the effect that one in six Canadians have experienced some form of identity theft. That same report also indicated that over 90% of Canadians are concerned about identity theft.

I know this bill is substantially the same as Bill C-27 from the last session.

I've seen reports from PhoneBusters that in 2007 $6 million was lost to identity theft, and up until October 31, 2008, $8 million was lost. I've seen reports that Canadian banks and credit companies estimate that we lost $2 billion per annum. There are 1.7 million victims. So I was really pleased to hear comments from the Liberal member, Mr. LeBlanc, and also from the Bloc member, Monsieur Ménard, to the effect they think we need to pass this bill quickly.

I think Canadians can be glad that we have a government that has taken this problem seriously. It is a crime of the 21st century, it's been said, and I'm glad we have a justice minister who has taken it seriously.

Thank you to all of the witnesses.

I'm grateful for your attendance today. In particular, I admire Mr. MacRury as a good example of a prosecutor who knows that in law there is not a defence side or a prosecution side, but only justice, because some of the recommendations in the CBA report are what I would otherwise think of as defence recommendations.

I would like to focus in particular on the recommendation made on page 3 of the brief.

I will start with a question for Mr. MacRury about what is called de minimus behaviour in his brief, which is very close to the legal concept we have in our common law courts of de minimis. I am thinking that a lawyers' organization like the CBA would not likely toss out a term that is so similar, unless it might be intending to refer to the same thing; but I'm not sure, and I would like to know, to begin with, if in that recommendation you are talking about what a lawyer in the common law system would refer to as de minimis conduct in a criminal case.

[Daniel MacRury]

Yes, we are.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right. That being the case, you are, of course, well aware that the courts in a common law jurisdiction at least already provide a de minimis defence against conviction if the facts warrant it. So I just want to know if your proposal would add anything to that.

[Daniel MacRury]

I'm very well aware of the common law. In fact, I'll give you a real-life example that happened 20 years ago. At that time, I actually was a legal aid lawyer. A person was charged with shoplifting a 2¢ screw from a store. The person was a 75-year old veteran who had never been involved in criminal law. This individual at that time had purchased something like $600 worth of goods, but he was charged because the institution had a pro-charge policy that any shoplifters had to be prosecuted, regardless of the amount.

That person was acquitted on that principle, but it should not have got to that point, quite frankly.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If I could stop you there, because our time is so limited, I just want to know if what you are proposing adds anything to the common law principle of de minimis.

[Daniel MacRury]

It builds it into the statute, which makes it clear to all the players in the system that this type of situation would not be caught.

I didn't mean to use up your time.