Bill S-4 (Historical)

An Act to amend the Criminal Code (identity theft and related misconduct)

This enactment amends the Criminal Code to create offences of identity theft, trafficking in identity information and unlawful possession or trafficking in certain government-issued identity documents, to clarify and expand certain offences related to identity theft and identity fraud, to exempt certain persons from liability for certain forgery offences, and to allow for an order that the offender make restitution to a victim of identity theft or identity fraud for the expenses associated with rehabilitating their identity.

Criminal Code

[Nicole Demers, Bloc, Laval, QC]

Madam Speaker, while I understand my worthy colleague’s desire for quick action, and he is surely right to compliment both my colleague from Shefford and himself, I wonder if we are not proceeding too quickly without considering what the Privacy Commissioner has told us, namely, to be careful.

The Privacy Commissioner is telling us to be careful because the Criminal Code is very cumbersome. As a tool, it is very difficult to use in getting convictions. The Privacy Commissioner also reminds us that it is absolutely necessary to work in concert with the provinces.

Furthermore, as we know, although I did ask the question of my colleague from Edmonton—St. Albert, in recent years the government has not demonstrated a capacity to work properly and openly with the provinces. We saw this with the Kyoto protocol and in many other files, such as the forestry and manufacturing sectors.

So we wonder whether there might be a stumbling block here that we must avoid. We must ensure that the government agrees to work in concert with the provinces to make this bill as effective as possible.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Madam Speaker, I thank the hon. member for Laval for her question. I am in complete agreement with her.

A measure in the Criminal Code as important as the one I hope we shall pass today, which can affect the privacy of individuals and personal and private information, should be passed with special care. I fully agree that this is a question of balance.

The Privacy Commissioner has had the opportunity to inform the Standing Committee on Justice and Human Rights of her opinion, which I take very seriously. We have to find a balance that strengthens the Criminal Code and protects vulnerable persons, but that also respects the need to understand and respect privacy in a balanced way.

In closing, my colleague from Laval noted a concern which I share regarding the government’s collaboration with the provinces. As we well know, in matters of criminal law, the consequences, costs and administration of justice are often the responsibility and duty of the provinces.

For example, in my province of New Brunswick, there are very few resources to set up a justice system and a justice administration such as we would like to see here in Ottawa, or for that matter, I am sure, in Fredericton and throughout New Brunswick.

I would be much more encouraged if this government were to sit down with the provincial justice and public safety ministers and demonstrate some openness. What can the federal government, with funding from the federal treasury, do to better support measures in the areas of justice and justice reform in the provinces?

In passing, I must say in closing that Quebec is a model in many respects for other provinces and for the federal government as regards the administration of justice.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Madam Speaker, I will start by saying that the Bloc Québécois supports this bill, which has come to us from the Senate. Once again, this rebuts the repeated arguments made by the Minister of Justice that the opposition systematically blocks its criminal law bills.

This is a well written bill, which is designed to solve an urgent new problem in modern society. It provides solutions that are nonetheless somewhat incomplete, because in fact there needs to be extensive collaboration with the provinces. Still, it provides essential solutions.

This is a modern problem. I think that even when I started practising law in 1966, we could not have imagined that stealing people’s identity could provide so many benefits to someone who did it. We were thinking rather about obtaining a false passport and things of that nature, but with the development of modern transactions, and particularly computer transactions and the use of credit cards, we have realized that identity theft can have terrible consequences.

I think we are already a little behind other countries. In 1998, the American Congress created a new criminal offence dealing specifically with identity theft. At that time, it prohibited the use, transfer or possession, knowingly and without authority, of a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity.

The bill that has come to us seems to me to be 11 years late already. In this case, we cannot say that this government, which was elected in 2006, has been particularly diligent, especially since the bill was apparently ready in the former government’s files, according to what I have heard from the other speakers.

The bill covers obtaining and possessing information relating to identity with the intent to use it deceptively, dishonestly or fraudulently in the commission of an offence. The first offence is therefore theft of identity information, the second offence is trafficking in identity information, and the third offence is unlawful possession or trafficking in government-issued identity documents.

This bill is relatively complete, and also provides for offences relating to possession of instruments for creating false identities. The bill also incorporates a new power, one that may be debatable in constitutional terms: allowing a court to order an offender, in certain cases, to make restitution to a victim of identity theft or identity fraud for the expenses associated with rehabilitating their identity.

I acknowledge that there are already similar provisions in the Criminal Code when the evidence of the offence discloses damages that are relatively simple to assess, to avoid a victim having to go to a civil court and initiate additional legal proceedings. This allows a judge, in sentencing a person, to order them to make restitution. Although we are, in a way, the guardians of the powers we exercise as a nation-state, I do acknowledge that this measure, which is more efficient and makes life easier for victims, is justifiable in the circumstances.

It must be understood that identity theft can have terrible consequences. A journalist in Montreal came home from vacation to find that someone else was in his house. Someone had purchased his house while he was away. He went to a notary. The person had evidently acted in good faith. The journalist had to take very expensive and very complicated legal action.

It is easy to imagine the shock a person feels arriving home and finding someone else living there. It is a tragicomic scenario. Fortunately, I believe the journalist had the psychological strength to deal with it all. He went through it and told the tale. The notary, who was acting in good faith, was taken in as well by the ID the vendor, obviously acting fraudulently, had shown him.

So it is far from trivial. All the other things come to mind such as purchases on the Internet and the use of credit cards. Very often, after our identity is stolen, the individual obtains credit cards in our name. Then they start spending, but we are the ones getting the bills much later on and we are the ones left with all the problems.

Most companies and banks absorb a large portion of the damages caused by identity thefts. It seems to me that, in 2002, the figure involved in identity theft was over $2 billion. I am providing these figures from memory, because I cannot find my notes. Good heavens, it is more than that. In 2004, something over $50 billion U.S. was associated with identity theft. The Canadian Council of Better Business Bureaus estimates that, in 2002, consumers, banks, credit card companies, stores and other businesses lost $2.5 billion as the result of identity theft.

There is obviously some comfort using a credit card in the fact that the companies cover the losses. I myself have experienced this when my credit cards were stolen. However, there is no doubt that, in the end, the consumers bear the cost.

The problem was becoming increasingly urgent. I believe that it was time to legislate in this area. I see that the government is legislating as well with a law I consider well formulated to deal with the problem. Rather than turning to its pet subject, as it does these days with minimum sentences, the government realized that there could be all sorts of reasons behind identity theft. Both the young amateur hacker testing the limits of his computer talents and organized crime systematically committing theft can steal identities. This is one more example, as with many other crimes, in which the court must have the freedom to choose a sentence appropriate to each individual case before it. A sentence can be as long as five years in the most serious cases.

We will support this legislation, which is even a little too late. We will support it in the hope that the government will continue and cooperate with the provinces. The Privacy Commissioner, Ms. Stoddart, has made suggestions in this regard, and I think she did so because she noted that the federal government was not cooperative enough.

I would like to use a little, but not all, of the time I have left, to mention what I pointed out at the start. The Minister of Justice claims that the opposition systematically rejects his legislative agenda . He can see that we have cooperated with him once again in committee and will always cooperate fully with him in an effort to improve his agenda. We oppose only when he takes a route completely different from one we consider effective in the fight against crime.

More and more he is saying that we must be tough on crime. That is what the Americans have done. They have been so tough on crime, established so many minimum sentences, and taken so much discretionary authority away from judges with regard to sentencing that that country now has the highest rate of incarceration in the world. Yet Canada had similar incarceration rates 25 or 30 years ago. What have they gained from that? They are now beginning to see for themselves that it does not make any sense. In July, the Vera Institute of Justice reported that at least 22 American states were about to curb their tough on crime measures, because the current system has reached its breaking point in terms of human and financial resources. It is this approach that we do not wish to see in Canada or Quebec.

Of course in the short term, one might think that imposing minimum sentences and showing that we are tough on crime would be more popular. However, when you go into specifics, studies have shown that, while people may initially support minimum sentences, when they are presented with specific cases, they tend to gradually come around and say that some exceptions must be made, then many exceptions, and finally, so many exceptions that there is no point in imposing minimum sentences to begin with. That is what we have seen in all Commonwealth countries in recent years. The Minister of Justice must know this, since this information can be found in one of his studies. We noted in particular that he said that no studies have shown any difference in crime rates after minimum sentencing had been imposed, rather only variations in incarceration rates.

As I was saying, the U.S. currently has the highest incarceration rate in the world with 762 people per 100,000 population compared to 117 people per 100,000 population in Canada. In all the western European countries we made comparisons with the rate is roughly 100 people per 100,000 population. It is not insignificant that in countries like France and Belgium, where juries participate with judges in arriving at sentences, the rate is lower, namely 93 in France and 88 in Belgium. What we see is that. although initially people seem to approve of minimum sentences, when they look at specific cases they suddenly realize that they should not be used indiscriminately.

What is more, this system is very expensive. The annual cost of keeping an inmate in a federal institution—I asked a commissioner of the federal correctional service this in committee—is $101,000 in Canada. We are told that almost all of that cost relates to the security measures taken in the prisons because of that $101,000, only 2% of a little more than $2 billion goes to rehabilitation programs.

Frankly, I am one of those who think that what is important is increasing the chances of being caught and I think I applied that in our province. By modernizing police squads, we have achieved remarkable results in the fight against organized crime and $101,000 is roughly the cost of one investigator for a year; that is roughly what it would cost for the necessary modernization of the squads that should be fighting the major fraud we are currently witnessing.

Again, to focus strictly on being tough on crime is to be stupid on crime.

People who are tough on crime think it is stupid to be soft on crime. Both are stupid though. The important thing is to be smart on crime, to be smart in the way we deal with offences.We must work on prevention, on increasing the chances of catching people, and on dealing with offenders, who all have their particular problems, so that the sentences they receive take fully into account not just the crime that was committed but the person who committed it, his motivations, his past, and so forth. That is how we will get results.

Here is an example. I was surprised to learn—we are currently studying the Canadian penitentiary system at the Standing Committee on Public Safety and National Security—that 39% of the inmates in Ontario have been diagnosed with a mental illness. I have long known that a primary characteristic of the inmates in our prisons is that they are socially maladjusted. I was aware but did not quite realize the extent to which it is mental illness that leads to social maladjustment. What does someone who has been diagnosed with mental illness know about the minimum sentences our legislators have provided to dissuade him from committing crimes? His motivations are obviously very different.

That is why it is so important for judges to have input on sentences. We have an especially good system in Canada because our judges are professional and independent. We have made efforts in all the provinces to ensure that the people who are appointed to the bench have met a certain number of tests. We have selection committees consisting of members of the public, the bar and the judiciary. There are still politically motivated appointments of course. I have never made any, but I know it does happen. At least all those who are appointed turn up. They are also appointed for life. They are independent and do not have any more political ties. In addition—at least in Quebec—we often make probation officers available to judges to provide psychological backup. This support is not for the judges themselves, of course. They can go and get that elsewhere if they need it. There are considerable resources available for judges who handle juvenile cases.

In our opinion, measures like these help us fight crime in ways that are smart. Just being tough on crime is stupid. It is even stupider both to be tough on crime and to try to discredit people who want a smarter, necessarily softer approach. People who are tough on crime inevitably want the toughest sentence, the one that takes least account of the prisoner.

I think that what we should be doing in the House is looking for ways to fight crime effectively. Following the same path as the United States means achieving the same results as the United States, where the crime rate is higher than in Canada, in some cases, appallingly so. Americans are three and a half times more likely than Canadians to be victims of homicide. Even worse, spouses in the United States are five times more likely than their Canadian counterparts to be victims of homicide. Why is that? It is because of other factors.

I repeat that our objections do not concern the agenda the government is introducing today. These measures are justified and aimed at fighting crime in ways that are effective. When the government tables something that is smart and well thought out, we are in favour of it, and that is why we are in favour of this bill today.

[Nicole Demers, Bloc, Laval, QC]

Madam Speaker, I again listened very carefully to the speech by my hon. colleague from Marc-Aurèle-Fortin who does not cease to amaze me with his extensive knowledge of criminal law.

Given the speech he just gave, I believe that he would probably agree with me that, in terms of criminal law and the legislative agenda, the government is currently attempting to have us pass a number of bills in the area of criminal law. Unfortunately, the government wants to give the impression that it is taking action much more than it wants to establish and develop coherent strategies to deal with the various crimes on the legislative agenda.

Does my colleague agree with me?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Madam Speaker, unfortunately, yes I do.

That is the impression given by the Minister of Justice since he took office. I believe that his constant talk about being tough on crime is not about lowering the crime rate. He need only look to the United States.

It is obvious that his model is mainly based on that of the Republicans in the southern United States. If he were to carefully examine their results he would realize that it does not work. His goal is to show that he is doing something. I look forward to seeing his initiative for major fraud. I do not believe that the minimum sentences served as a deterrent for Norbourg and Vincent Lacroix, who perpetrated the biggest fraud in Canada to date.

I look forward to reviewing the agenda to be presented by the minister for the modernization of police squads through the systematic use of forensic accountants and true professionals. I think it may be promising because the risk for those who commit fraud will be greater than at present.

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

Madam Speaker, I rise in general support of this legislation. It is important to set this in a historical context. This is legislation that is badly need in this country and that need has been identified for the better part of the past decade.

We saw an initial attempt by the former Liberal administration in the 2004-06 Parliament to bring forward this kind of legislation. We saw it reincarnated under the last two Conservative Parliaments and we are finally getting to it now.

Following up on some of the comments of my colleague from the Bloc who just finished speaking, it is important to view this in the context of the focus of the government on other areas of, as the Conservatives see it, reform in sections of the Criminal Code when in fact the areas covered in this legislation should have been given priority. This legislation should have been in our laws. It has been in a number of other jurisdictions, for example, in the United States, England and Australia, for a number of years, well ahead of where we are at this point. In fact, those countries continue to be ahead because there are one or two significant gaps in this legislation in terms of dealing with what every member of the House knows is a serious problem with regard to identity theft.

We have all heard the horror stories. We have heard the estimate of at least $2.5 billion a year in losses as a result of identity theft, primarily of credit cards and debit cards, small personal loans, that area. That is one of the gaps in this legislation and I will spend some more time on it.

We also heard that there is a corresponding value loss with regard to real estate transactions, both in terms of residential and commercial property. We have a similar loss of $2 billion to $2.5 billion a year. This bill does not address that area at all. I will come back to that because there is definitely more work that needs to be done at the federal level in that regard.

The bill is a significant step forward in combatting this type of crime. It introduces some expanded concepts of what official identity documents are. One of the problems police forces, prosecutors and judges have had in enforcing the existing provisions of the Criminal Code is that the code did not cover new developments in official identity documents.

We have expanded what those are significantly. There is a lengthy list in this bill and hopefully in the law when it comes into effect that will make the prosecution of these offences much more effective and efficient.

A second major thing this bill does is it addresses what we know is a huge problem. It involves a way that small street gangs as well as more expansive organized crime gangs get identity documents. They steal them out of people's post office boxes or their residential mailboxes. We have made that a specific crime. It is very clear what the offences are. They involve not only committing the theft but being in possession of the documents stolen.

There is protection for people who would be entitled to obtain documents from people's mailboxes. For instance, if people are away on vacation and their neighbour picks up their mail, the neighbour would not be in breach of the code. That is a major step forward.

I say this because of personal experience. One of my neighbours was confronted with this problem a few years ago. In talking to the police at that time about their investigation. Criminals were targeting systematically specific residences where they knew people were not home during the day, oftentimes where there was only one adult in the family. It was obviously well organized and the criminals were very efficient in gathering that type of personal information, which they then used to commit crimes of fraud and forgery, et cetera.

The third area that is addressed in the bill has to do with identity information. This is a reflection of the need to modernize the code. People involved in mostly more sophisticated organized crime will gather information, as extensive as including DNA samples, in order to establish a totally false identity but with that degree of certainty in order to prove they are somebody else.

We have set out a very long list of what that identity information is. It includes fingerprints, DNA and all sorts of more technologically advanced sampling that we can do than when these sections of the code were made law as much as 100 to 150 years ago. Those are major steps forward in the bill.

From that perspective my party is quite prepared to support it. In fact, we are going to be supporting the passage of this legislation.

There remains problems and I want to deal specifically with the issue of the gap in not addressing the whole issue of identity theft as it affects real estate transactions. I repeat what I said earlier. The amount we are losing in that regard is as significant as the amount we are losing on the other issues that the bill addresses. It is in the range of $2 billion to $2.5 billion a year.

There is no question that there is responsibility on the part of provincial governments to deal with this. For instance, I know from practising law that the law societies across the country have dramatically increased the responsibility of lawyers and notaries to identify accurately the clients who are sitting in front of them that they in fact are the people they claim to be. We have taken that on as an additional professional responsibility.

Real estate agents similarly have had quite significant additional responsibilities imposed on them in identifying the purchasers and vendors in real estate transactions.

There is a role for the federal government. There are specific sections now in the Criminal Code that deal with the issue of fraud and forgery with regard to real estate transactions. They are clearly out of date.

One of the witnesses whom we heard from at the justice committee was a witness on behalf of the title insurance associations of Ontario. They tend to be one of the major victims because at the end of the day they oftentimes are the ones who end up having to pay when there has been an identity fraud transaction. The witness clearly pointed out the inadequacies of the existing sections in the code and even had a model from experiences in the United States, which the government has opted not to pursue. I forget which state it was but it was one of the more advanced pieces of legislation which effectively makes that type of transaction an illegal transaction and makes it much easier to get a conviction. It has been very effective in that state which is one of the southern states in the United States. It is something that we need to do.

I intend to pursue that because the indication I have had both from the justice minister and the Conservative Party is that they are not going to be moving on that. They are leaving this responsibility entirely in the hands of the provinces. That is not the role the provinces should be playing, so we will be moving ahead to bring that before the House, hopefully within the next month or so.

It will modernize the Criminal Code so that it deals with the modern criminal activity that is going on. The code clearly is inadequate in that regard.

There is another point I want to raise in terms of the legislation and the way it is worded. I am quite concerned that on identity information there is one section that deals with how that information is used. It is proposed section 402.2 of the Criminal Code, clause 10 of the bill. The term “the reckless use of this identity information” is used. Being reckless is almost like a criminal negligence type of concept; being so reckless that it amounts to a crime.

The Supreme Court of Canada has had difficulty with that terminology in the past, and I am worried that this section may not be effective. I proposed an amendment to it, based on recommendations we had heard from the Canadian Bar Association. That did not get majority support at the committee. The wording is still in there. I caution the government in the course of this speech to monitor this. I think it will pose a problem for our police and prosecutors to get convictions, if the court treats that terminology the same way the Supreme Court has in another major case. That is a problem.

The other one caused me a good deal of concern as well. I credit the Canadian Bar Association for bringing this to our attention. There are two sections which in effect allow a very wide scope of officials to procure false documents. It is in section 7 and then again in section 9. Section 9 is less problematic because it limits the scope of that section to police officers, who are already defined elsewhere in the code in section 25.

Section 25 sets up a regime where it is recognized that from time to time our police officials will be required to break the law. This is a relatively new section. It is only about 10 or 12 years old, I believe, but it has a whole regime of how that is regulated, how it is supervised by senior officers and when it is permissible. It requires reporting to this chamber on an annual basis, in effect, the use of criminal activity to combat criminal activity. I believe it has worked quite well, and I say that from having looked at the reports. Actually, the justice committee did a review of section 25 two or three years ago and came away quite satisfied that it was working very well.

Section 9 exempts police officers from the provisions of the bill, but it does not have the regulatory function that section 25 has. It clearly also exempts them from section 25. I got no satisfaction from the responses we got as to why they were doing that. I believe that the police officials should be regulated by section 25. It has worked. We may want to modify it to some slight degree in terms of the reporting function in particular, but it is a tool that has worked very effectively and allows the police to conduct criminal activity in order to catch criminals, but it has safeguards to prevent it being abused.

The other section, though, was even more problematic, and that is section 7 of the bill. Section 7 basically provides a defence to anybody who provides an identity document “as long as it is requested by a police force”. I do not have any particular problem with that. It also stipulates “the Canadian Forces”. Every single soldier in this country could ask for a forged document. Then it goes on, “or a department or agency of the federal government or the provincial government”. Every single employee of the provincial and federal governments could ask someone to prepare a forged document. They could go to MasterCard and Visa and say, “I want a fraudulent card in this name”. They would not have to give any explanation. They would just have to say that they are a public official, a teacher, a social worker or a worker at the LCBO, in the case of Ontario. All of those are entitled to ask for forged documents. The person can give it to them without having to worry about committing an offence.

Corresponding to that, because of the way the rest of the bill works, the person asking for that document is not, I believe, committing an offence. It is wide open to abuse, up to and including rogue police officers. I am not worried about the police force. I quite understand the need for the police force to have that. I still think police forces should stay under section 25.

This does not require approval by a senior official in the department or provincial ministry. Anybody can ask for a forged document. I received no satisfaction. It is problematic. I agree with the government that this section has to be monitored.

As I said earlier, we are going to support the bill because the rest of it is badly needed, but section 7 is wide open to abuse. We need to monitor it very closely.

We have needed what is covered by the bill for the better part of seven years. Police and prosecutors have been telling us how badly they need this provision. It is a shame that we have given priority to other amendments to the Criminal Code and put this on the back burner. We badly need to get this done, get it through, and get it into place, so our police and prosecutors have the tools they need to prosecute these offences.

[Alan Tonks, Liberal, York South—Weston, ON]

Madam Speaker, the member has dealt extremely well with the issues.

As he indicated, theft would come out of mail boxes. These would be specific crimes. Organized crime and smaller criminal elements are intrusive and invasive in the manner by which they defraud individuals.

The House is concerned about the elderly. As immediate kin provide less support to elderly people, they become more dependent on institutions through estate probate, through guardianship and so on.

My colleague has indicated which officers of the Crown and the province would have access to information in a probate situation. Are there mechanisms that would protect those who are virtually wards of the court? I am speaking in particular about the elderly with no kin and who are totally under the protection of government institutions through estate law, through trusteeship and guardianship. Would the same degree of checks and balances protect them in a situation like that?

The member talked about the law society and the real estate sector, but I am speaking more in terms of the invisible accountability that exists to protect seniors through probate, through the courts, and through a series of checks and balances to ensure fraud would not occur and that they would not be taken further advantage of.

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

Madam Speaker, the answer generally would be yes. In a situation involving probate, where someone has passed away, the executor or trustee of the estate would have the same protection, so if somebody was trying to impersonate that person, they would have the same protection. That would be as equal an offence as if they were trying to impersonate the deceased person. Yes, that protection is there for them.

In terms of the situation where individuals are still alive and someone is operating under a power of attorney or a court order and authorized to take over control of their assets because they are no longer capable, the protection would extend to the trustees and the attorneys in those circumstances.

[Dennis Bevington, NDP, Western Arctic, NT]

Madam Speaker, coming from the Northwest Territories, one of the big concerns that I have with identity theft is of course the inter-family aspect. Perhaps this was alluded to by the previous questioner, but there is a potential in the system for elder abuse. Very often in society, people within a family are taken advantage of in the short-term when their credit cards are taken and used where they should not be used. These types of things go on inside families.

How practically would this law protect people within that realm and yet not put it to a point where family relationships are disrespected? There is a fine point of law here that is not always black and white, but grey. Using his knowledge, I would like my colleague to comment on this.

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

Madam Speaker, I would have to say that this bill does not address that issue. Generally speaking, this is a bill that deals with identity theft occurring at arm's length by strangers.

The type of problem that my colleague is asking about is much more common. I saw this in my own practice repeatedly. It occurs in one of two ways. Individuals have themselves authorized by way of powers of attorney to take control of the assets of the elderly person, or they have been appointed by a court to do that and then they abuse that fiduciary relationship. That is controlled by other sections of the Criminal Code and, quite frankly, more so by common law in the civil courts.

The other situation, and I think he was making some reference to this, is simply where the abuse amounts to extortion, threats or actual violence against elderly persons to force them to sign a cheque or sign over assets under that kind of duress. These amendments to the Criminal Code do not address that area at all.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I think that this is another great example of a case where the horses have already escaped from the barn. In fact, the Liberals had a majority government here 10 years ago. They had ample opportunity to deal with this issue.

We were quite aware in those days that the banks were looking at a smart card system. They were looking at phasing that in and they actually had figures, which anybody could get, that indicated the cost of the problem. Every year, the losses due to identity theft regarding credit cards were going up and up, and yet the banks were ignoring it because it was simply a cost of doing business.

This encouraged the fraudsters because they basically knew that they could get away with it. My colleague talked about the real estate industry. We are talking about $2 billion to $2.5 billion on the credit card side and even more on the real estate side. This bill does not deal with that.

When is the government going to come to terms with this issue and not wait another five years before it deals with the real estate side of it? That is an even bigger developing issue. Once the fraudsters know that they can get away with it, they get even more organized and more determined. They do more and more of it. We must put a stop to this.

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

Madam Speaker, I have a quick anecdote.

I was actually sitting on a credit union board in that period of time when we were looking at enhancing the security of both debit cards and credit cards. The member is dead on with his comments about the large banks simply seeing this as an expense of doing business.

What that meant to them was that they passed on that expense to the consumer. It is part of the reason we have somewhat higher interest rates, both on our credit cards and consumer loans.

It would have been a time for the government, not so much under the Criminal Code but under the industry department, under commercial activity in this country, for that responsibility to have been imposed because it was not done voluntarily by our financial institutions. They did not end up bearing the costs. We, as consumers, ended up bearing the costs.

We could have done that quite a number of years ago. The technology was there. I was sitting on those boards more than 10 years ago and the technology was already there at that point. We are just starting to see it at this stage.

There has been a misdeed here on the part of both the banking institutions in this country and the government.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Madam Speaker, I am pleased to indicate to the House my support for Bill S-4, as I think all members of the House have indicated today and previously. I do not recall very much dissent, although some caution is urged in relation to one or two sections of the bill.

The bill has been a long time coming. I guess it is pretty clear on the record that we are at third reading stage. Somebody offered earlier today to expedite its passage but it would be pretty tough to expedite it much faster than the speed at which it is already going. I do not know whether I am the last speaker but at some point today the debate will end, the House will adopt the bill and it will be over. I congratulate all those who wanted to expedite it because they will get their wish.

As members have said, the concept behind the bill has been in the drafting stage for about 10 years. There were complexities that did delay it in the early years. There was a bit of a moving target with respect to personal information. This is an area of evolving legislative activity. I think it was the intention of the original drafters that we get a good definition of what “personal identity information” is, and the bill has a pretty good definition, which I will get to later in my remarks.

I recall going through the bill very carefully at the justice committee one or two Parliaments ago. The bill, however, was always pre-empted by a parliamentary dissolution. It was not that nobody wanted to see it pass. It was always a problem of Parliament ending in a dissolution before the bill was fully passed.

However, there is a section that has created an offence involving the possession of a Canada Post mailbox key. This type of key is the one postal workers use when they distribute and pick up mail on the street. All Canadians are familiar with those big post boxes and those big keys that the postal workers use. I think the original intention was to create an offence for anyone who was in possession, without authority, of one of those keys.

Now, that makes sense. Why did it take us 100 years to get to this point? I am not sure. Maybe it is because the post office always did a pretty good job of keeping control of its keys. However, it has become a problem, which is the basis for this proposed offence. I think this has been expanded to include possession of any key that would open a post box receptacle, which means my post box key and the keys of everyone here. There are probably millions of post box keys across the country.

I think somebody has thought this out, but it is not an offence just to be in possession of somebody else's post box key. There needs to be an intent to use it fraudulently or to commit an offence described in the section. However, had I had such an opportunity at committee, I would have scrutinized very carefully the implications of creating a new offence that made it an offence simply to be in possession, with a fraudulent intention, of something that is so common. I could say that if we are going to make it an offence to possess someone's little mailbox key, then why do we not make it an offence to possess somebody's house key? The house has much more value than a post box. Here we may have unwittingly treaded into a territory that we have not thought through.

However, in any event, it is in the bill and I will not object to it but my gut tells me that down the road, at some point in time, there will be a case and a fact scenario that will raise potential issues with respect to somebody's possession of a simple mailbox key. I am not talking about the big post office key. I am just talking about an ordinary residence or apartment building mailbox key. We all have them.

I am very pleased to see that in the bill we grappled with and nailed by definition the concept of credit card and debit card in a way that would allow police and authorities to clearly identify an offence when it happens. Up to now, a credit card was just a piece of plastic with some information printed on it but we all regard credit cards as something more than that. It is our access to credit, cash or whatever. Up to when we started amending the Criminal Code, that little piece of plastic was just a piece of plastic. The bill, essentially, completes the initiative to place an intrinsic legal value on the information contained on the credit card. Credit and debit cards have magnetic strips with personal information, credit information, digital information and now they also have chips, with who knows how much information, but all intended to better secure the credit realm, if I can put it that way.

Also, the bill gets into the issue of identifying and defining the personal identification number, the PIN, that is a necessary partner to some types of credit or debit access, either person-to-person or machine-person-to-machine. That would be helpful for the police as they carry out investigations. For example, if there is a reason to arrest somebody who is suspected of being involved in a fraud or a crime and that person was in possession of what appeared to be PINs, up to now, those numbers would just be numbers and it is actually not an offence to be in possession of a bunch of numbers. However, if they could be identified as personal identification numbers to be used in association with credit and debit transactions, it is a new offence, and that is a good thing.

Up to now, when there was theft from the mail, the police, authorities and prosecutors always had difficulty trying to figure out who was the owner of the mail when it was stolen. Certainly when it is in the possession of the post office, there were offences dealing with theft from the mail from the post office, but what if the post office had not taken possession of it yet or what if the post office had already delivered it to a residence? After it has been delivered by the post office to a box sitting outside a front door somewhere, is that theft from the mail or is it theft from somebody in the house? What if the name on the letter does not match the name of the owner of the house? These were always problems.

I suppose I could ask why it has taken us 100 years to figure this one out, but the answer is that in the good old days, in the early 1900s, maybe there was not so much theft from the mail. Maybe it was not a big problem. However, the police and prosecutors have identified it now as a weakness in public security. We have managed to clarify that so mail that is sitting delivered to a house, a residence or in a box, not only is the key somewhat protected but so is the mail and that will allow better police enforcement.

I want to raise a concern, as my friend from Windsor—Tecumseh did earlier, about the exemption of public officers from prosecution when they use a forgery technique in their work for public safety.

The exemption is somewhat circumscribed. The alleged offence, and only an alleged offence because it says they are exempt, must be committed for the sole purpose of establishing or maintaining a covert identity for use in the course of the public officer’s duties or employment. As my friend pointed out earlier, the term “public officer” is quite a broad definition. One wonders why this particular exemption could not have been folded into section 25 or subsection 25(1) of the Criminal Code where there are statutory exemptions from prosecution for police or public officers in the course of their duties.

The most common case one thinks of is the work of an undercover police officer who assumes a false identity for the purpose of a covert undercover investigation. Citizens accept that. However, under section 25 of the Criminal Code when a public officer commits an act that would otherwise be a criminal offence, there must be a record of it and a justification for it in writing. The exemption claimed by the officer and agreed to by the police force that he or she is a part of is recorded in the House. A report is introduced in the House every year that describes each and every instance of exemption of a police officer from prosecution when an act is committed that would otherwise be a criminal offence.

One wonders why we would not require this type of exemption in this bill, clause 368.2, to be included in similar reports. Some people will say that there is just too much police and public officer covert activity going on and that instead of having a small volume filed in the House of Commons, the report would be 12 or 24 inches thick. That is possible, which is why I wanted to put it on the record and join my friend who spoke earlier on this as raising a possible concern.

The public should be much more satisfied that the bill has managed to bring in protection for a whole lot of personal identity techniques and information, which I will read for the record. The identity information protected includes: a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, social insurance number, health insurance number, driver’s licence number or a password.

I wanted to get those on the record because so many people routinely use all of those things. I wanted the record to show that this legislative amendment captured all of those things and gave people at least some protection under the Criminal Code. It does not mean that there will not be thefts of identity. It just means that the code identifies these things as protected items and, if they are stolen, used or misused, the prosecution will be easier and more focused.

Will it deter the bad guys? We do not know. The bad guys will always be out there looking for a chance to steal and plunder, although we hope there are fewer and fewer of them out there, but at least this amendment attempts to capture all of the things we have become used to as personal identity items.

The bill has a sentencing component. I am very pleased it does not engage in this mindless political posturing of throwing the book at those convicted with mandatory minimums. The bill quite properly proposes sentencing ranges for those convicted of these offences. Sometimes it is up to five years, or it is up to 10 years, or it is by indictment or it is by summary conviction, but the sentencing ranges look appropriate.

As we have always done in our Canadian justice system, and in most justice systems in the modern world, the decision making on sentencing is left to informed judges. I wanted to make this point because a number of the criminal law amendment bills we are looking at in this Parliament, and in the previous Parliament, all seem to have as their objective the rewriting of the sentencing regimes. In some naive way the proposers of the bill think that by tweaking the sentencing, we are going to get a safer country. I do not understand this.

I have had a close-up look at the Canadian justice system. I have been privileged to be in the House for many years. I was on the justice committee for 15 years. I had the privilege of seeing the criminal justice system up close, and it was not always pretty. I saw it working reasonably well. It is not like there were never any mistakes.

I cannot accept that by throwing a mandatory minimum sentence into a particular offence, we are suddenly going to have a reduction in the number of offences. The criminals out there, the would-be criminals, the maybe criminals do not know what the sentence is for any particular crime. In fact, I challenge anybody here today, any member of the House, to get up and tell us what the sentence would be for a particular offence, even under this bill. One could not know. The reason is we have provided for sentencing ranges. When people are convicted, they do not know what the sentence will be until the judge finally decides.

If we do not know what the sentence is, how could those would-be criminals out on the streets know what the sentencing would be? In their mind, as I have always seen it, it is binary in reaction to the criminal justice system. Either they are going to get their deterrences, or they are going to get caught or they are not. It is not about what the sentence is. They do not get out their little calculators and calculate what the sentence is before they hop into the car. Their whole view of this is whether they are going to caught. If they think they are going to get caught, they are not going to do it that night. If they think they are not going to get caught, they might.

I do not understand the mentality that urges upon the House that if we suddenly put in a whole bunch of mandatory minimum sentences, all those bad guys will know what the sentence is and they will stop their criminal activity and we will be safer. I just had to get in that sentencing issue.

I am pleased to have had a chance to talk about the bill. It looks like we are going to have ourselves an identity theft bill.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, the hon. member's presentation was excellent. He dealt with some of the shortcomings of the bill. One particular area he neglected to mention was the whole issue of the real estate exposures, which the member for Windsor—Tecumseh talked about as being an area that was missing from the bill.

We are looking at $2 billion to $2.5 billion in real estate losses in the country alone. It is certainly increasing rather than decreasing. Would the member agree with the analysis of the previous member and does he see this as a possibility with this bill or would it require a separate legislative initiative?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Madam Speaker, it is a good question and I think there is a good answer, but it may not be the answer the member wants to hear.

First, the member is not talking about people selling worthless bags of dirt dug up from fields. What he is talking is fraud in real estate transactions. Real estate transactions and the whole jurisdiction of real estate is provincial. The management of those transactions, the verification of the documents and the procedures are all provincial. Up to now that has been the case in securities matters. Those are provincial transactions and they regulate them.

When it comes to fraud, the Criminal Code has a fairly robust and very old fraud section. Therefore, all the illegality in fraud, to which I think the member is referring, will be currently covered by the Criminal Code fraud provisions. However, we do not have to say it is a fraud involving real estate, or involving securities, or involving currency, or involving the sale of bananas, or apples, or goats or horses. It is a fraud.

Therefore, there is Criminal Code coverage for it, but in terms of those who would falsify a mortgage in a land transaction, those offences, the false document presented to a provincial land registry, whether it is a mortgage, a deed or a transfer of land, those are covered. It can also be a federal offence.

However, I accept that there is not a specific Criminal Code section that says that if one does a fake land transfer, it is a special Criminal Code offence, buy it would be a Criminal Code fraud.