Thank you, Mr. Chairman.
I would like to thank the honourable members for the opportunity to make a submission today on behalf of the Canadian Bar Association criminal justice section.
The Canadian Bar Association criminal justice section commends the efforts of Bill S-4 to address identity theft and related criminal activity, as these are serious problems giving rise to significant individual and societal losses. We appreciate that Bill S-4 would restrict the scope of some of the proposed new offences so as not to inadvertently capture unrelated or innocent conduct, particularly in relation to new offences concerning identity documents and information. We also support Bill S-4’s proposed removal of certain reverse onus provisions of the Criminal Code. We recommend several amendments that we believe add clarity and certainty to the proposals contained in Bill S-4.
The CBA criminal justice section's comments today are guided by three principles. One is the principle of legislative restraint. Revisions to the Criminal Code should only be made where existing provisions are inadequate. Two, any new proposals must comply with the Charter of Rights and Freedoms. Three, changes to the Criminal Code alone are generally insufficient to address serious or complex problems. To be effective, such changes must be accompanied by refinements in law enforcement practice and procedure, increased public education, or other legislative amendments.
The last observation may be particularly applicable to the problem of identity theft. The federal Privacy Commissioner and other organizations have noted that an effective response to identity theft will require a comprehensive approach, including a broad range of initiatives in addition to changes to the Criminal Code. In other words, there has to be more than one tool in the toolbox to address this serious problem.
We would like to make the following recommendations. First, Bill S-4 should be amended to expressly exclude the general provisions of attempt and counselling and certain types of de minimis behaviour.
Second, the relationship between the new offences proposed in Bill S-4 and the existing general provisions should be clarified.
Third, the proposal to prohibit possession of identity information should be amended to offer greater clarity by replacing the term “is reckless” with more explicit language.
Fourth, the exemption for certain police activities in clauses 7 and 9 of Bill S-4 should be removed.
In relation to recommendations one and two, the bill defines a new category of documents described as identity documents. It proposes a wide range of offences, including procurement, possessing, and selling social insurance numbers, drivers licences, etc. Given the combined scope of the definition and the proposed offences, we believe that the bill's proposal to add new defences to the existing concept of lawful excuse is appropriate. It is a clear attempt to restrict the reach of these provisions and is consistent with the concerns we have addressed in the past.
In spite of Bill S-4's proposed restrictions, other jurisdictions go further to restrict the reach of similar provisions in two ways. First, they expressly exclude the general provisions of attempt and counselling. Second, they expressly exclude certain types of de minimis behaviour, such as for young persons possessing identity documents to gain admission to licensed premises.
The criminal justice section recommends that Bill S-4 be amended to expressly exclude general provisions of attempt and counselling and certain de minimis behaviour. There also should be some clarity between the existing provisions and the new bill.
On our third recommendation, the section believes that the term “reckless” should be clarified. Proposed section 402.2 prohibits possession for the purpose of transmission, making available, distribution and sale, or offer for sale of that information where an individual knows, believes, or is reckless as to whether the information will be used to commit an indictable offence containing an essential element of fraud, deceit, or falsehood.
Including recklessness as a form of the mental element for this offence could be seen as responding to the Supreme Court of Canada in R. v. Hamilton. We also note concerns about the formulation, particularly as it might apply to businesses or industries that handle large volumes of such information. While the term “reckless” is used in the Criminal Code, it is not free from controversy and occasional interpretive difficulty.
To provide greater clarity and to address some of the business and industry concerns, we suggest more explicit language. For example, in R. v. Hamilton, the Supreme Court of Canada equated recklessness with “conscious disregard of the substantial and unjustified risk”.
In the Hamilton decision, the Supreme Court of Canada, at paragraph 28, stated:
The “substantial and unjustified risk” standard of recklessness has venerable roots in Canada and in other common law jurisdictions
It cited cases, and then the court went on to say:
Finally, a brief word on R. v. Sansregret.... The Court in that case defined recklessness as the conduct of “one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk...in other words, the conduct of one who sees the risk and who takes the chance”.... The Court, in Sansregret, did not set out the degree of risk required to attract criminal sanction.
As well, in the decision, the Supreme Court of Canada said at paragraph 33:
We have not been invited in this case to revisit Sansregret or to consider afresh the governing principles of recklessness
It is our submission today that, without clarity in the definition, the courts will have to consider afresh the governing principles of recklessness.
That deals with our concern in relation to recklessness.
Our fourth recommendation to you today deals with the exceptions for police and other official acts. Clauses 7 and 9 propose another exemption for certain activities for public officers as defined by section 25.1 of the Criminal Code. Given the existing legislative scheme, it is unclear why another exemption might be necessary. The Canadian Bar Association criminal section has strongly opposed an exemption from criminal liability for police or their agents, arguing that the law should apply to everyone, but acknowledges that the existing sections contain certain detailed procedural safeguards and reporting requirements. We see no reason the acts specified in Bill S-4 would be inadequately addressed by the existing scheme, and we are opposed to creating further exemptions of this sort.
The criminal justice section recommends that the police activities in clauses 7 and 9 of Bill S-4 be removed.
In conclusion, this section recognizes the prevalence and seriousness of identity theft. We appreciate the efforts in Bill S-4 to provide narrowly circumscribed new offences to address the issue without inadvertently capturing what should properly be non-criminal activity. To further advance this objective, we suggest some clarity in the language of the bill—for example, surrounding the mental element of recklessness, as well as a clarification of the interaction between some of the proposed offences and the attempt and counselling provisions of the code. We also appreciate the proposal to increase the use of a hybrid structure of offences to give greater flexibility and scope to prosecutorial discretion in dealing with these matters.
I would like to thank the honourable members for this opportunity this afternoon.