Justice Committee on Sept. 28th, 2009

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I have every confidence, Mr. MacRury, that if you or any experienced prosecutor were prosecuting, you would be very well aware of the de minimis principle in determining whether or not to proceed. So I am glad that you cleared up for me that this isn't intended to add anything to the common law de minimis defence, at least.

The second thing I'm curious about—

[The Chair, Conservative, Ed Fast]

Mr. Woodworth, you are out of time.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Oh, I'm sorry.

[The Chair, Conservative, Ed Fast]

You may get another chance, though, if we do have some time left.

Monsieur Petit, you have five minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good day, sirs. My question is directly mainly to the RCMP representatives. I may also have a question for Ms. Stoddart regarding a specific matter

Most likely you have read the bill now before the committee. I want to be certain that you understand me. Consider the following example. Some people have obtained and used a Quebec health insurance card, even though they do not live in this country. I'm sure you read about this in the newspapers. Thousands of people managed to obtain a health insurance card that entitled them to received free medical services paid by the residents of Quebec, even though they did not live in Quebec.

First of all, I would like to know if the bill will apply to fraud cases of this nature.

Secondly, we have another problem, one that is also occurring in Quebec. I'm not talking about Ontario, even though it has experienced the same thing. Foreigners managed to obtain social insurance cards that entitled them to receive a certain amount every month as well as free services. We are not dealing with identity theft in such cases. These individuals used the system fully to obtain benefits. You understand the difference.

Would the bill make it easier for the provinces or the federal government to take action against these individuals?

[Jennifer Stoddart]

I am not an expert in criminal law, but subsection 403(1) as amended by the bill notes the following:

403.(1) Everyone commits an offence who fraudulently personates another person, living or dead,

As I see it, the focus of this bill is NEXUS and identity theft.

I believe you are referring to instances of fraud and in my opinion, these are already dealt with in the Criminal Code.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question was more specific than that, Ms. Stoddart. I am talking about people who come to Canada—either to Quebec or Ontario—under their real name. They obtain a health insurance or social insurance card and receive benefits in Quebec or in Canada, rather than in their own country. They are guilty of fraud.

In your opinion, will this bill make is easier to investigate such actions and will it perhaps provide for better sanctions against the people committing fraud? That is what I want to know.

[Jennifer Stoddart]

Sir, as I understand it, this bill deals specifically with identity theft. Therefore, if someone were to use a death certificate and pass themselves off as a Canadian who is deceased in order to obtain these benefits, then the provisions of this bill could apply.

However, I believe the Criminal Code contains other provisions that allow for the prosecution of individuals who have stolen someone's name or invented a fictitious person in order to obtain benefits. Perhaps the RCMP could enlighten us further.

[C/Supt Stephen White]

Yes, I do believe it would already be covered under the Criminal Code as uttering a forged document. So whether it be a health card or any other piece of identification or card that will get you an advantage, whether it be health care or some other advantage, it would be covered under uttering a forged document. I believe the revision of that in proposed subsection 368(1) reads:

Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine.

So it is covered under the current Criminal Code and would also be covered under the new revised provisions put forward here.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Miller first, and then Mr. Comartin.

You have five minutes.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you very much, Mr. Chairman, and to all our witnesses.

Like Mr. Norlock, my question here is going to be on the theme of victims' rights or lack thereof. I've always felt that in a lot of our laws made by lawmakers like ourselves and enforced very questionably sometimes by our judges, the criminal's rights seem to be looked after more than the victim's rights.

This came about when I heard the comments on, I believe, section 25 and another section. I apologize if I don't have the right numbers. Mr. MacRury, you seem to have a problem with some of the aspects of that, which surprises me, because I strongly believe we should be giving the police all the tools they need.

I know in an example up in my own area of Owen Sound just a couple of years ago, police out doing regular patrols at 3 o'clock in the morning found a suspicious vehicle, which turned out to be loaded right to the roof with marijuana. That case got thrown out of court because of improper search and seizure. The public still shakes their head at that one. So I'm all in favour of anything we can do to give the police the tools they need.

We talk about the recouping of properties, or whatever, in order to reimburse the victims. If, under bankruptcy laws, a corporation or company can protect individuals from losing their personal property, does the same thing apply here under this law, when you can confiscate properties and what have you? I apologize if it sounds like a foolish question, but I'm not a lawyer, and I'd like to know if those same protections are there. I hope they're not, but I'd like to hear your comments on it.

Can a member of an organization be protected under the law if his organization, and he's a known member of it, commits a fraud?

[C/Supt Stephen White]

I guess in terms of the proceeds that would be generated from that fraud, there are provisions under proceeds of crime to attempt to seize and eventually forfeit those gains as proceeds of a criminal activity. They can be forfeited, obviously, to the crown. I'm not able to speak to what discretion a judge would have in terms of applying that in terms of restitution to victims.

Even if a fraud is committed by an individual in an organization, if those proceeds have been passed on to other individuals and through our investigation we can trace those proceeds, even if those proceeds have gone through two or three hands, which we call a laundering process, if we can still show the original source of those funds or proceeds from the criminal activity, we can attempt to have them forfeited as proceeds of crime, as proceeds of criminal activity.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

That's good. I'm glad to hear that.

Mr. MacRury, do you want to comment on my earlier point that you seem to have a concern about the police having too much...?

[Daniel MacRury]

Thank you.

The CBA position is very clear that one law should apply to everyone. We acknowledge that there are existing sections under section 25 of the Criminal Code, but those sections have procedural safeguards. Any time any individual breaks the law, there have to be safeguards. I would submit to you that the existing Criminal Code provisions have the proper procedural safeguards already in place. Any time you make exceptions to the rule of law, you have to be very prudent.

I would submit that the CBA position is very clear, and has been clear, that one law should apply to everyone and the procedural safeguards that exist in the existing Criminal Code are sufficient.

[The Chair, Conservative, Ed Fast]

We'll move on to Mr. Comartin, for five minutes.

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

I just can't let Mr. Woodworth's comments go by, praising the government and the current justice minister. The reality is that this bill would have been law by January of this year if we hadn't had an election and a prorogation of Parliament last year at this time.

Mr. MacRury, on the recklessness issue you raised, I had caught that as well, and I caught it last year before the election. You've used some terminology out of the Hamilton decision. Are you proposing that we use that type of wording? You weren't more specific other than that we need to look at it again.

[Daniel MacRury]

As I indicated earlier, there needs to be some clarity on this term. By fixing the clarity on that, you would strengthen the bill. The words in Hamilton are “substantial unjustified risk”. If I were making a suggestion to the legislators, that would certainly be more explicit language that would be of assistance so there would be no doubt. If I put my other head on as a prosecutor, at the end of the day this bill has to actually work. We don't want to be spending our time in court basically fighting over the term “reckless”. That's why clarity is important.

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

Are we at some risk that if we stick with “reckless” we will get a challenge that it's not specific enough and it will get struck down?

[Daniel MacRury]

In Hamilton it referred to another case at paragraph 33. The court went on to say that they were not going down that road of interpreting “reckless”. The concern is that given it hasn't been interpreted by the courts; it's an open question. You have an opportunity as a legislature, if you so choose, to make more specific language so there's more clarity.

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

Maybe there are at two risks. They either strike it down because it's too vague, or the courts interpret it so rigidly that it doesn't accomplish what we're trying to accomplish in this section. Are those the two risks?

[Daniel MacRury]

Any time there is an interpretation, not certainty, there's that risk. Given that we're now at the legislation drafting stage, you have an opportunity to be more specific. That's what we're saying.

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

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

We've basically gone through everybody at committee. Is there anyone who still has a question?

Mr. Woodworth, I cut you off earlier. Do you want to close with your second question?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

On Mr. Comartin's comments, I recall that one of the reasons there was an election last year was that so much of the government's justice agenda got clogged up in the Senate and in the Commons. But I'm very happy that the NDP is working with the government to try to avoid an unnecessary election at this time.

I'll move on to the recommendation to expressly exclude the general provisions of attempt and counselling. I'm not really sure if the CBA is proposing that an attempt to steal identity information should not be a criminal offence. Is that what's intended by that?