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, an excellent resource from 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 ActGovernment Orders

October 22nd, 2009 / 1:20 p.m.
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Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Madam Speaker, I would like my colleague to reiterate some of the ways that victims truly are traumatized and doubly victimized by this kind of crime, not just that the funds that are stolen from them but some of the intangible ways that their lives are affected so negatively.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:20 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The hon. member for Crowfoot has 40 seconds for his response.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:20 p.m.
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Conservative

Kevin Sorenson Conservative Crowfoot, AB

Madam Speaker, I can speak quickly. I own an auction company, so I can do it like an auctioneer.

Many people invested in these types of things to secure an education for their children. We had a case where they felt they could invest in a program and in five years, when their kids were ready to go to college, they would not have to go through the student loans. There were reasons why perhaps their children could not access a student loan. They put money in hoping their children would get an education. Well, they got an education from the school of hard knocks. That is where the children ended up going because there were no moneys because of the loss.

In other cases, the farm has been put up and owners have seen significant losses. There are cases in retirement where they have stopped--

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:20 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Resuming debate, the hon. member for Argenteuil—Papineau—Mirabel.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:20 p.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Madam Speaker, I am pleased to speak on behalf of the Bloc Québécois to Bill C-52 relating to economic crimes.

I am particularly pleased because our colleague from Abitibi—Témiscamingue had an opportunity today to deliver the main position of the Bloc Québécois. As we know, before our colleague from Abitibi—Témiscamingue became a member of this House, he was a criminal lawyer for 30 years.

We also have our justice critic, the member for Marc-Aurèle-Fortin, who is also a criminal lawyer, and who of course was Attorney General of Quebec and was also a senior official in the ministère de la Sécurité publique in Quebec.

When the Bloc Québécois analyzes bills, it does so thoroughly. For two days now, the Bloc Québécois has been asking the Minister of Justice to provide a list of the cases in which criminals and fraud artists defrauded people of over $1 million and were then given sentences of less than two years.

For two days, our Conservative colleagues have had their research service working on it. This has to be examined, because we must never forget that the legal system we have inherited from our parents and our grandparents is based on precedent, and so is obviously a constantly evolving system. I hope the examples the Conservatives have cited for us are recent law and are new decisions or the most recent decisions.

It is too easy to engage in demagoguery, particularly when it comes from the Conservatives, because they have decided to do politics the easy way. It pays to be tough on crime, because often the public listens to the media, and obviously both the press and the electronic media often sell papers or attract viewers by inflating a news item and trying to sensationalize it. That is how our democratic societies work, and that is fine.

The public can make up their own minds. They watch more than one television network. They are not all the same. They can read more than one newspaper and they do not all have the same opinions on a subject. That is fine. Except that when a political party like the Conservative Party decides to jump to conclusions, it is very easy and it is demagoguery at its worst when they try to take a single trend and apply it to a party’s agenda. And they think this is the way to win elections.

Obviously, they may think this has borne fruit for them, except that in Quebec, Quebeckers are much more vigilant in terms of how justice is administered, and they get to the bottom of things. That is why, election after election, a majority of the members they elect to this House are from the Bloc Québécois, which gets to the bottom of things before taking positions.

In Quebec, we have had to deal with major white-collar crime cases. We are talking about the Norbourg case, with Lacroix, and the Earl Jones case. Obviously, these are perfect examples of criminals who have abused the system. These fraud artists had built up their system over a number of years. These were not occasional frauds. These are criminals who built an entire empire, one that made a lot of profit for them personally. They were able to live the high life, they had a wonderful life, and obviously, with the outcomes we have seen when the economic crisis hit, everything collapsed and all the houses of cards they had built crumbled.

This clearly left victims, people who lost a lot of money, in distress. Once again, when I talk about a government’s skill at exploiting public opinion, that is what it is trying to make us believe, that Bill C-52 is going to solve the problem.

What the victims of Vincent Lacroix and Earl Jones are looking for is to recover their money. It is wrong to say that the bill will enable victims to do so. It will not make recovery of the money possible.

Once again, it is all very well to say the guilty person will be required to reimburse something, but they have to have assets left to do so. The fact of the matter is that, in the cases of Vincent Lacroix and Earl Jones, it becomes clear very quickly that the money has disappeared because they had set up the system years previously. Perhaps the Conservatives are fooled, but we in the Bloc Québécois are not. The money has disappeared and is probably to be found in tax havens protected by the government. The Bloc has, for a number of years now, called on both the Liberals at the time and the Conservatives to abolish tax havens, and they do nothing about it. This bill is not going to make it possible to recover all the funds in tax havens that might be held by white collar criminals. It has absolutely no impact on tax havens.

So, once again, the victims are stuck and for good reason. The Minister of Justice's strategy was to publicize this bill before introducing it in the House. Today, the leader of the Bloc Québécois rose on a point of order about this. I know that the Chair will consider the matter and rule on the Conservatives' new approach, which is to short-circuit the House of Commons. Our prime objective, however, is to enact legislation. This is the first time in the history of Canada that a government has decided, in an effort to influence public opinion, to release the bill directly in the media before parliamentarians have seen it.

Once again, why did they do it? Out of sheer partisanship. This is the Conservative approach to politics. I repeat. Quebeckers are not fooled. The people of the rest of Canada, however, clearly are fooled by the Conservatives' behaviour. That is their problem. Quebeckers have understood the messages. Nevertheless, for non partisan purposes, the Bloc, on our return to the House of Commons in September, sought the unanimous consent of the House to table a measure regarding the abolition of the granting of parole after one-sixth of a sentence has been served. The Conservatives will try to convince us that there must be a minimum sentence of two years for crimes involving over $1 million.

All that that accomplished—the fact that the Conservatives waited—is that criminals in Quebec, the Vincent Lacroix types of this world, are pleading guilty. Earl Jones is in the process of doing the same thing. Vincent Lacroix decided to plead guilty in September. Earl Jones is getting ready to plead guilty. They are doing so precisely to avoid having a bill, such as the one introduced by the Bloc Québécois to abolish parole after one-sixth of a sentence has been served, come into effect before they are sentenced, so they can be paroled after serving one-sixth of it. That was the twisted part. The victims are not reimbursed, and these criminals can be released after serving one-sixth of their sentence.

Vincent Lacroix was sentenced to eight years in prison. He got out after serving one-sixth, or 15 months, of his civil court sentence. He was sentenced in criminal court as well as a result of legal proceedings instituted by the AMF. He decided to plead guilty to these criminal charges. He was sentenced to 15 years in prison but will be eligible for release after serving one-sixth. This means we will see Vincent Lacroix back on our streets after two and a half years. That is what the Conservatives are trying to stuff down the throats of Quebeckers.

But Quebeckers have already moved on. They know we have to get rid of conditional release after one-sixth of the sentence for these criminals. Why? These criminals are obviously not what are usually considered dangerous. They have not committed armed robbery. Ultimately, though, they are just as dangerous because they get to their victims psychologically. I know, of course, that the Conservatives have a bit of a difficulty with psychology and things like that. I know quite a few of them who find that sort of thing difficult. But that is where Quebeckers are now, and that is what the Bloc Québécois expected.

In a spirit of non-partisanship, therefore, the Bloc Québécois is saying today that it will vote in favour of this bill so that it can be sent to committee and improved. As it now stands, it will not resolve the problems of the victims.

The minister’s attempt to hold a press conference to unveil his bill failed miserably because the victims were not convinced when it came to their two major problems: the reimbursement of their money and ensuring that these criminals do not return to our streets after two and a half or three years. This bill does nothing to resolve these two problems.

It is hard because we are dealing with a government that has the entire bureaucracy and tremendous resources at its disposal. It uses them to promote itself. It even makes cheques out with the Conservative Party logo on them. It is quite the thing to see them in action. They use government advertising dollars to sing the praises of their own political platform.

The Conservatives will not succeed, though, because they are not achieving the objectives, at least in Quebec. It is difficult for them because they are on the wrong path. We have experts here. The hon. member for Marc-Aurèle-Fortin and the hon. member for Abitibi—Témiscamingue are well-known criminal lawyers. The hon. member for Marc-Aurèle-Fortin was the Attorney General of Quebec. But the Conservatives are not listening to common sense.

That is the message the Bloc is delivering here. That is the hand that the Bloc reached out to the government in September. First the Bloc Québécois tried to show that there are criminals who are prepared to plead guilty because they will be eligible for parole anyway after serving a sixth of their sentence. Why not unanimously support a Bloc Québécois bill to abolish conditional release after a sixth of the sentence? That would prevent the Vincent Lacroix’s and Earl Jones’s of this world from serving a two-and-a-half year sentence when they should be serving 15 years. Even if they got a 25-year sentence, they would only serve a couple more years if they served just one-sixth. In that case, they would serve four years instead of two and a half before returning to the streets. That is the reality. We do not know whether a two-year minimum is enough. Lacroix got eight years and was released after 16 months. If he pleads guilty, he will be sentenced to 15 years in prison but will be back on our streets after two and a half years. That is the reality and that is what the victims find so infuriating.

The second problem has to do with restitution. There is no mention of compensation or a compensation fund in this bill. The Conservatives are introducing a compensation process by saying that the guilty party will have to compensate his victims. That already exists in the Criminal Code. The problem with organized fraud by the likes of Vincent Lacroix, Earl Jones or Cinar is that there is no solution in this bill. For weeks, the Bloc Québécois and its leader have been saying in this House that there was fraud in the case of Cinar. There was collusion at the Department of Justice under the Liberals. The press took note of that. Again, the Minister of Justice rose in this House to ask whether we had new information to reopen the case. We see new information in many of the newspapers in Quebec. They probably do not read newspapers from Quebec. We can see what impact it has on them politically not to do so. They would be well served to read the Quebec media, which has all the details on this affair. The people of Quebec have decided to clean house. They truly want white collar criminals to stay in prison for the duration of their sentence, be it 15, 20 or 25 years. Criminals have to serve their sentence.

People who lost their money want to be compensated whether it is the government that does so or not. Some may have submitted requests, but they want someone to go after the money hidden in tax havens by the criminals. People are under the impression, and I agree with them, that when the criminals get out after serving one-sixth of their sentence, or after a year and a half or two years and a half, they get on a boat or plane and are never seen again. They will live out their days under the sun thanks to the money they stole from their victims. It will be thanks to the Government of Canada because the elected members of this House will not have been intelligent enough to understand what the Bloc Québécois has been trying to say for over three years now.

Requests were submitted to the government In 2007 and again in 2009. We have been saying that the system needs to be fixed. It is time to take action. It is no time to be ideological and keep bleating about being tough on crime, as the Conservative MPs are doing. Tough on crime, tough on crime; it is rather redundant.

We have to be able to prevent white collar criminals, the likes of Vincent Lacroix and Earl Jones, from returning to society and the community after 16 months. That is what happened with Lacroix after his first trial even though he was sentenced to eight years imprisonment. He was recently sentenced to 15 years but in two and a half years he will be out again.

Quebeckers do not want this to happen any more. Victims who have lost money want restitution and want us to simply abolish tax havens because that is where the money is.

Once again, the member for Marc-Aurèle-Fortin has proposed a special squad of accountants. The RCMP should set up such a squad to track the money in these tax havens.

I realize that this is a problem for the Conservatives. When tax havens are allowed and, through bilateral agreements with certain countries, you encourage citizens to invest money in them, you are not too keen on having the RCMP investigate the money that is transferred to these countries.

Those countries that have signed an agreement with Canada would surely call to tell us to not set up a squad to conduct investigations in their countries. We should simply break our ties with these countries and establish special squads of chartered accountants, specialized accountants and certified general accountants who would conduct investigations.

If we look back in history, Eliot Ness was finally able to charge Al Capone with the help of the US Internal Revenue Service. That is how they sentenced the most notorious criminal in America. It was not by trying to arrest him for crimes committed because they were never able to prove them. They convicted him of tax evasion and that is how they were able to nab him.

That is the reality. We must use our tax system in order to follow the money trail. Day in and day out, victims tell us that they do not understand how they were drawn into such an affair. What is worse, they find themselves back where they started but with no money.

Then we learn that people like Earl Jones and Vincent Lacroix have no money left. People find it very difficult to believe—as I do—that these fraudsters have gone through hundreds of millions of dollars just like that. Earl Jones traveled all around for three weeks before being taken into custody.

The authorities looked for him worldwide. Search calls went out. Was he in England or another country? We were told that he was here, but he was able to stash all his money away and that is what we need to find out. I understand why people are cynical. They are saying that since he pleaded guilty, no one can know what is going to happen and we will not learn any more. They are right because Canada does not have a specialized RCMP investigation team to trace those funds. That is a fact.

Once again, and with a great deal of respect from all the members of this House, the Bloc Québécois introduced such measures and called for the unanimous consent of the House, which we did not obtain. Our request was simple, that is, simply to abolish the practice of parole after one-sixth of the sentence for white collar criminals. Our request was not complicated. We asked for unanimous consent, and the Conservatives said no.

Yesterday the Minister of Public Works and Government Services told us that more research was needed and that it was complicated. However, it is not complicated to say that white-collar criminals will not be entitled to early parole and will have to serve their full sentence. It is not complicated. It would have been a simple question of adding a few paragraphs to the legislation. We can do that. But, no, they want to completely overhaul the entire parole system.

So for four years now, they have been amending the Criminal Code section by section, one at a time, according to what is happening in society. There is no Conservative plan to amend the Criminal Code. They are doing it piece by piece. When a crime is committed and the public interest has been captured by the media, they introduce a bill. In the case of parole, they have decided they want to make a number of amendments. Once again, the Conservatives should pay attention to the wisdom of Quebeckers, represented here by the Bloc Québécois.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:40 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, once again I think the government is doing a little false advertising with this bill and raising false hopes among the people in the country that white-collar criminals are actually going to spend a lot of time in jail when we pass this bill.

I think the member is on the right track here. If we are going to put people in jail and then allow them out after serving one-sixth of their sentence, I do not think that is what the public actually thinks is going on with this bill or that it is something the public would actually support.

The other area that the member raised was the whole issue of tax havens. Nobody believes that these criminals are keeping their money sitting in bank accounts here in Canada. We know that they are sending this money out to tax havens in the Cayman Islands and places like that.

I would ask the member whether he would agree that perhaps the government should be looking at regulating the banks a little more tightly so that we can try to track these suspicious movements of money.

I like his idea about beefing up the RCMP and having forensic auditors being more active. However, we also have to look at the regulatory framework and have tough regulation in this country, as opposed to having industry insiders sitting on the panels that are supposed to be doing the regulating.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:40 p.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Madam Speaker, in answer to the first part of my colleague's question, I would say that the Conservatives are using the justice system for purely partisan purposes. “Tough on crime” is a snappy little sound bite. It is easy to fit into speeches. The Conservative members have been well trained, like sheep, and they all know how to say “tough on crime”. However, actually being tough on crime is something else entirely. My colleague raised some good points about that.

Proclaiming that one is tough on crime is not what it takes to unanimously pass a bill eliminating conditional release, as the Bloc Québécois proposed, to prevent white collar criminals from being put back in the community after serving 16 or 18 months of an eight-year sentence. That is what happened with Vincent Lacroix, who is expected to spend two and a half years of his 15-year criminal sentence in jail. He was sentenced to eight years on civil charges. He will be back on our streets in two and a half years.

It was simple enough. We were not trying to play partisan politics, and we were not getting all dramatic, saying we were tough on crime. We just did not want criminals to be back on the streets after serving one-sixth of their sentence. It was not that hard to understand, but apparently, it was a little too complicated for the Conservatives.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:45 p.m.
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Bloc

Yves Lessard Bloc Chambly—Borduas, QC

Mr. Speaker, I want to congratulate my colleague from Argenteuil—Papineau—Mirabel for the relevance of his remarks. What he did not say was that he also has legal training, like our colleagues from Abitibi—Témiscamingue and Marc-Aurèle-Fortin.

The relevance of his remarks was very much appreciated. I think that they helped clarify the intentions of this bill. The bill's title in French is meaningful. The French title refers to “châtiment”, meaning retribution or punishment, on behalf of victims of crime. That is the word used, and the root of that word comes from the French for “sharia”. I do not think that parliamentarians should be creating revenge bills; they should be creating bills that seek justice.

Often, in order to get people to understand the scope of a measure, we need to stimulate their imaginations. The Leader of the Bloc Québécois spoke about a role model, Guy Lafleur, who became very famous because of what he accomplished both on and off the ice. Under a similar bill, he could have been the victim of some of these measures. These measures would be identical to those applied to someone who did something as horrible as stealing more than $1 million, when he simply gave contradictory evidence in court. The measure is pretty clear.

Would this bill not end up creating more victims?

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:45 p.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Madam Speaker, yes, and that was very eloquent.

I said earlier that the problem with the Conservatives is that they do not read the Quebec papers. It was very telling to see the analyses in the press, even the ones by legal experts, because they were clearly divided on the issue. Most said, though, that under this bill, people like Guy Lafleur would have automatically been sentenced to prison. It is amazing how the Conservatives are determined to replace the justice system. There is a reason we have been asking them for two days to cite one case where a criminal who committed fraud over $1 million was sentenced to less than two years in prison.

Earlier, a Conservative finally gave us an answer and named cases. The Bloc Québécois experts and I have taken note of them. We have to be careful. We are talking about cases, crimes and sentences in recent case law. There have been many such cases in Quebec and the rest of Canada recently. We are talking about case law that is up to date, because it evolves. Obviously, cases affect other cases and form case law, which evolves over time. It is therefore important to consider the latest cases and trends. We will check. Lately, at least for rulings handed down in Quebec in the case of fraud over $1 million, offenders have been sentenced to more than two years in prison.

That is not the problem. Vincent Lacroix was given a civil sentence of eight years imprisonment because the sentences were for terms of less than two years cumulatively. He was able to get out after 16 months incarceration because he was eligible for parole after serving one-sixth of his sentence. That is the problem identified by all victims and all Quebeckers who saw Vincent Lacroix plead guilty immediately after the Bloc Québécois presented its motion.

We had unanimously requested in this House that the provision of release after serving one-sixth of sentence be abolished for white collar criminals. The Conservatives said no. Two days later, Vincent Lacroix pleaded guilty in order to avoid serving his full sentence of 15 years, which would have been the case under the Bloc Québécois proposal to abolish parole after serving one-sixth of a sentence.

The Conservatives' inertia made it possible for Vincent Lacroix to be sentenced and to be free in two and a half years. That is the reality. That is how the Conservatives play petty politics with the topic of the day. The Conservative members say they are tough on crime but in the end they just follow along blindly. The result is that Vincent Lacroix pleaded guilty and was sentenced to 15 years imprisonment but will be out on the streets in two and a half years.

The House resumed from consideration of the motion that Bill C-52, An Act to amend the Criminal Code (sentencing for fraud), be read the second time and referred to a committee.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:50 p.m.
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Fort McMurray—Athabasca Alberta

Conservative

Brian Jean ConservativeParliamentary Secretary to the Minister of Transport

Madam Speaker, I appreciate the opportunity to speak today to this particular bill.

I work with the Bloc member, who spoke earlier, on my committee, and he asked what the Conservative government's plan was. I can assure him that the Conservative government's plan and priority is to protect victims of crime, not to stand up for criminals but to stand up for Canadians and Canadian families and ensure victims are protected and future crimes are avoided.

The Bloc would like to join us in this particular agenda, and I would welcome them. I have noticed as well, from the questions of some of the NDP members, that they are also interested in moving forward with the Conservative government to protect victims and to ensure that criminals actually pay for the crimes they commit.

As one famous Canadian said, the Liberals, however, are so confused, they are stabbing each other in the front right now. So, I am not sure where they sit, although they have said that they will join us in this particular agenda. I would welcome them to join us in future agendas to protect Canadians and Canadian families.

This bill contains six measures, all of which are designed in some way to enhance the sentencing process for offenders convicted of fraud. Indeed, many families are devastated as a result of fraud, especially serious fraud involving tens, if not hundreds of thousands upon millions of dollars of pension funds. Many Canadians are affected by this. We as a government are committed to ensuring that this practice will stop as much as possible and that those people who do commit these crimes actually pay, so we discourage future criminals from committing those crimes.

The first of these elements is the mandatory minimum penalty, which is so popular with most Canadians. Canadians are most concerned about large scale frauds, as I mentioned, that actually wipe out people's life savings and demonstrate the extreme greed of the criminal and indifference to others. To address this concern, the bill includes a mandatory penalty of a minimum of two years imprisonment for any fraud or combined frauds of over $1 million.

We should mention that this mandatory minimum penalty acts as a floor to ensure that there is some consistency with judges and justices throughout this country and that people who do commit this crime have a clear message from the government that they will do the time if they commit the crime.

The second element is in relation to aggravating factors. This is an excellent case of where the government is taking some common sense approaches to ensuring we protect victims and punish criminals. There are currently four statutory aggravating factors for fraud under section 380.1 of the Criminal Code, and the bill would add new aggravating factors to the list. We believe, as a government, that these new factors would go further to deterring criminals and ensuring victims are considered in all aspects of these matters.

The first factor is the impact of the fraud on its victim. The victims would prepare a victim impact statement and provide that to the court so that the court can see first-hand how this particular offence and how this particular criminal has affected them, their family, their friends and their future life.

In my past life as a litigator for some 11 years, I saw this impact directly, not just on individuals, Canadian families and seniors, but also many times on clubs: curling clubs, skating clubs and many non-profit groups that actually rely on these funds and then find out, after they have appointed somebody to a position of trust to manage these funds and take care of them, they find after three or four months, sometimes even years, that all of a sudden all the money is gone and all that is left is paperwork. The criminal has spent it either on gambling, which many times is the case, or just simply on a lavish lifestyle. That would be the first of the new aggravating factors to be considered by justices and judges across this country.

The second factor that is important for today is the complexity and magnitude of the fraud itself, because these criminals are becoming much more adventurous, much more intellectual as far as the crime itself and how they go about committing it. We want to ensure judges consider this in the sentencing provisions themselves.

The third aggravating factor is the failure of the offender to comply with the applicable rules and regulations as set out by the particular situation they are in, and, off course, that speaks for itself.

Finally, the fourth statutory aggravating factor that would be added to section 380.1 of the Criminal Code would be any attempt by the offender to conceal or destroy records relevant to the fraud, which obviously shows the offender's bad faith and intention to try to get away with the crime even after he or she is caught.

All of these issues are extremely important. Criminals and victims themselves should recognize that this Conservative government is standing up for them and ensuring their priorities are met.

The third measure is what judges have considered as aggravating and mitigating circumstances. This would require the sentencing court to state on the record, which is very important, which aggravating and mitigating factors it has applied. The reason for this is to ensure consistency. As we know, we have a system of law that relies on case law and precedents to ensure that judges that make future decisions are able to examine what past judges have done and make decisions based upon that to ensure consistency across the country from province to province and coast to coast, which is very important. This is also to ensure transparency in the decisions themselves made by the judges so that when they make a decision, which may not be normal or may fall outside of the boundaries, they state it clearly on the record.

These factors will in part be very effective to ensure that future criminals will not consistently--

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 1:55 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Order, please. The hon. member will have 13 minutes remaining for his comments after question period.

The House resumed consideration of the motion that Bill C-52, An Act to amend the Criminal Code (sentencing for fraud), be read the second time and referred to a committee.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 3:15 p.m.
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Liberal

The Speaker Liberal Peter Milliken

In the debate that was taking place earlier on this matter the hon. Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities had the floor. There are 13 minutes remaining in the time allotted for his remarks. I therefore call upon the hon. parliamentary secretary.

Retribution on Behalf of Victims of White Collar Crime ActGovernment Orders

October 22nd, 2009 / 3:15 p.m.
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Fort McMurray—Athabasca Alberta

Conservative

Brian Jean ConservativeParliamentary Secretary to the Minister of Transport

Mr. Speaker, I appreciate the opportunity to finish off what I had started because this is such an excellent bill. I think it deserves the due attention that it is going to receive.

Where I had left off was in relation to the six measures that this particular bill contains, and I had outlined at least three of them. The first was in relation to minimum mandatory sentences; the second being the additional aggravating factors that would be added to section 380.(1) of the Criminal Code; and the third being that the judge or justice state on the record those aggravating or other factors that determined his or her sentencing in relation to the alleged accused as a result of being convicted.

The fourth is a new sentencing tool. I really think this is a good factor in relation to this particular bill because it would give the courts a brand new sentencing tool for fraud offenders, aimed at preventing the commission of further frauds and victimizations. Indeed, often these particular individuals who commit these types of crimes will continue to do so because this is the only mode in which they earn a living.

The court, in this case, would be able to order as part of the sentence that the offender actually be prohibited from having work for remuneration or in a volunteer capacity, often these types of cases involve some sort of volunteer non-profit organization, and that involves having any authority whatsoever over another person's money, over another person's valuable securities, or over any real property that a person would have.

The order is discretionary and available for any period of time. What I like the best is that it can actually be ordered for life and in some circumstances, it certainly should be, especially where we see that particular person continuing to behave in that same manner and continuing to travel around the country.

I, myself, had a case in which this actually took place. That person defrauded a curling club in one location in the province and then moved some 400 or 500 miles to a new location and then defrauded a particular service organization of upwards of $50,000, in that particular case. It could have been prevented if this type of order would have been in place. In fact, the gentleman's credentials were such that, in the first case, he received a two years less a day conditional sentence, which means it was provincial time and he, in this case, would not have to serve that time in jail. He actually served that time at his house and as a result of that, he moved, went to a different location, got a job as a manager of a restaurant, and then defrauded that person of up to $50,000.

So, this is a really good addition to the Criminal Code and I think it will be used by justices and judges according to need.

The two final measures are actually aimed at improving the responsiveness of the justice system and the sentencing process to the needs of victims.

As members know, we in this Conservative government stand up for the rights of victims and we ensure that Canadians and Canadian families continue to enjoy the freedoms they have and, at the same time, do not have to succumb to criminals and criminal activity.

Data from 2006-07 showed that approximately 20% of fraud convictions resulted in a restitution order. I was somewhat shocked at that. However, in order to encourage greater use of these orders, first, sentencing courts would be required to ask the crown prosecutor in the case whether reasonable efforts were made to give victims a chance to indicate whether they want restitution. I cannot imagine many cases where a victim that has been defrauded would not want restitution. That is usually not the case. As a result of that, courts would also be required to consider restitution in all fraud cases and to provide reasons if restitution is not ordered. That would set this as a new precedent, another proof that we in this Conservative government will stand up for victims of crime.

I just want to digress for a moment and speak about a particular part of my practice that I found very refreshing from the federal government. It was approximately 11 to 12 years ago. It was in relation to child support guidelines.

As a practitioner in northern Alberta, I would see cases, especially because we had justices from all over the province of Alberta come up to Fort McMurray at that time, with the same circumstances where court orders would be double the amount for children or even half the amount for children in other cases. So, the child support guidelines giving clear indications to judges and justices across the country as far as what people made, as far as income and what they should pay in child support is very similar to this.

I think we will find this to be a very welcome approach, not just for crown prosecutors but also for justices so they know the starting point, the absolute minimum and what those aggravating factors should be once case law is established, and what people should receive based upon what kind of offence they committed.

Three points of caution are needed. First, no criminal law reform can change the bottom line, namely, that if the offender does not have any adequate assets there cannot be restitution. Indeed, it cannot help. Our hearts go out to that, which is why we are looking at other regulations and doing consultations across the country to stop this before it actually happens, and to put in place regulations so that fraud of this nature cannot continue to happen.

It should also be kept in mind that the crown prosecutor is responsible for making the sentencing submissions and victims will not have standing to advance their restitution requests. They need to work with the crown prosecutor and ensure they fully disclose how much this has hurt them and their family through a victim impact statement. They also need to disclose how much was taken by providing proper accounting records in order to prove the case and then the crown prosecutor can put that forward to the justice.

The last measure in the bill would specifically acknowledge that courts may consider a statement prepared by a representative of a community or definable group for consideration at sentencing for fraud cases. This is new but this is a great application to allow all those victims who have been taken advantage of by a particular criminal or criminal organization to put forward exactly what this has done.

In most cases, as I have mentioned, the victims are primarily seniors and retirees, but curling clubs, not for profit groups, hockey clubs, figure skating clubs and even arts clubs have also been victims. It seems that criminals will stop at nothing to take money and to personally enhance their own lives. Especially bad is defrauding church groups, flying clubs and, therefore, taxpayers and the government because, ultimately, we, the people of Canada, the taxpayers, must pay that. When they defraud the Government of Canada, it is we, the taxpayers of Canada, who ultimately pay because they are actually stealing from us.

This is an excellent bill but I would like to go over some of the case law. There have been some suggestions by the Liberals and even the Bloc that this is not the case, indeed when is there a two year or less sentence for these people who steal that kind of money. As a result, some investigation was done and a review of case law does suggest that the average sentence for large frauds is around four years, although some people do receive much longer sentences and some shorter. When people receive lesser sentences, it usually is in a case where there is a joint submission by a crown prosecutor and a defence lawyer. They come together and negotiate a plea based upon a certain amount of time being spent in jail and then present that to a judge based on usually good evidence. Sometimes they negotiate it for other reasons, primarily as a result of getting an early guilty plea so victims do not have to deal with it. Now we have a two year minimum and it needs to be over that.

I would like to talk a bit about some cases that have come forward. In one particular case, the Queen v. Cioffi in 2009, where the accused was convicted of fraud, more than $4 million were taken and the scheme lasted four years. It was quite a complicated scheme. It required some form of planning and a large number of fraudulent transactions. However, in this particular case, the accused had no criminal record and did not personally benefit. Someone else benefited. The individual who stole this money received two years less a day, which means provincial time. It is not even under federal jurisdiction. Two years less a day means that the individual is eligible for house arrest, which, quite frankly, I do not think should be allowed in these particular circumstances. Now people will not be allowed because this government has that two year plus mandatory timeframe.

In another case, R. v. McCarthy, a 2008 case, two loans were involved totalling in excess of $3 million, aggravating factors included, obviously the breach of trust, a considerable number of victims and there was no criminal record in this case either. The individual in that case received a conditional sentence of two years less a day as well, followed by a year of probation. So, $3 million and two years less a day in jail.

In the 2008 case of R. v. Wilson out of Nova Scotia, $1.8 million were defrauded in a one month period and, unbelievably, the $1.8 million fraud resulted in 26 months in jail.

In the case of R. v. Lafleur, it was 28 counts of fraud spanning four years and totalling over $1.5 million. The individual received 42 months of jail time and a restitution order. In this particular case, there was a guilty plea and other mitigating factors were taken into account, such as age and the lack of a criminal record.

In the 2006 case of R. v. Coffin, the individual received 18 months in jail for 15 counts of fraud totalling $1.5 million. Eighteen months does not seem like much time, especially given some of the circumstances and facts that I will be mentioning at the end of my speech today.

In the case of R. v. Nottingham, the individual received a conditional sentence of two years less a day to be served in the community. The individual was allowed to stay at home for the entire length of the sentence and do normal activities for the most part. Aside from some semblance of house arrest, the person still had the big screen TV and all the rest of the amenities. More than $1.1 million in that particular case was defrauded.

The last case I will refer to is R. v. Toman. This was another case of two years less a day for defrauding $2.5 million over a six month period. That might sound like lot of time to some Canadians, but I want those Canadians to recognize that two years in jail does not mean two years in jail.

Two years in jail usually means maybe 15 months in jail, at the top, or two-thirds of the time. However, more often than not, the person will do half time as a result of credit or whatever else, which means 12 months in jail. As we heard earlier from some of our colleagues across the way, some people often only spend one-sixth or one-third of their time in jail, even up to less than eight months.

It seems like a fairly good rate of return when one can steal a couple million dollars and do six months behind bars. This government is about to change that particular circumstance. We have made many changes in relation to protecting victims, but those were some of the cases that I think Canadians were not aware of.

Quite frankly, two years is not enough for those people who are prepared to steal from seniors and non-profit groups. They should do more time and this government will ensure that if people do the crime, they will do the time.