Bill C-21 (Historical)

Standing up for Victims of White Collar Crime Act

An Act to amend the Criminal Code (sentencing for fraud)

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.

Standing up for Victims of White Collar Crime Act

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, one thing that is very clear from what the hon. member said and what I have heard throughout this morning is that this bill lacks teeth and it lacks teeth in a couple of areas. The first is that it does not include all white collar crimes, which is a failing of this bill. There has been lots of talk about restitution. The second failing in the bill is that the people who commit the crimes are not compelled to pay back victims. I find this difficult to understand, particularly because it is a government bill and the government is always talking about victims and victims' rights. It seems to me that this bill fails in that particular area.

I wonder if the hon. member would like to comment on that.

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

Mr. Speaker, the big exposure here for the government and the country as a whole is the lack of a proper regulatory system with teeth. The government's answer to this problem is to have a national securities regulator, as if that would solve the problem. We need people in the securities commission in Toronto or wherever it is located with an enforcement mentality. We do not want people with a retired investment executive mentality who would approach this as a retirement job, who would attend the same Christmas parties and play golf with the people they are supposed to regulate.

Whether it is the IMET system or any system, we need people who are interested in doing the job. We need people who are interested in investigating, in regulating. We need people who are interested in getting results. We do not want people who are prepared to turn a blind eye and let the system continue on its merry way.

There is really nothing wrong with this legislation. It is good legislation, but it would not stop any Ponzi scheme from occurring. It would not stop any mortgage fraud scheme from happening. That is the problem. The government needs a more comprehensive approach to white collar crime.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, the Conservatives have a dumb down approach to crime. Whatever the crime is, their only solution is a mandatory minimum sentence. I think of the idiocy of suggesting that a mandatory minimum sentence will address Ponzi schemes, massive corporate fraud, the kind of shenanigans that we have seen over the last number of years with international financiers. Those people do not think they are going to get caught. They do not think they will have to do two years.

These international financiers are taking money from investors, ordinary citizens, and moving it offshore. Bernie Madoff stuck around too long. If he had his way, he probably would have headed off to the Cayman Islands. Earl Jones would have been laughing had he gone to the Cayman Islands. The Conservatives will not touch the Cayman Islands or any offshore bank accounts. They could have followed the money through Panama. It is the number one money laundering country in the world, yet the Conservatives are trying to sign a free trade agreement with that country.

Why does the government come up with fairly useless solutions such as mandatory minimum sentences, when they turn a blind eye to the massive corporate crime that is going on in terms of moving money offshore and being unaccountable to Canadians?

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

Mr. Speaker, we just have to think back to February when the Government of France increased taxes on any companies that were doing business in the tax haven of Panama. Guess what happened? Within months, Panama signed a tax treaty with France. If the Government of France can get tough on tax havens like Panama and get tax compliance in a matter of a few months, then why not Canada?

Canada is negotiating a free trade deal with Panama but we are not one of the countries with a tax treaty with Panama. One hand of the government does not know what the other hand is doing.

Why does the government not follow France's example and then see how quickly the Panamanians respond in that situation?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the bill deals with cases of fraud in excess of $1 million in aggregate. Does the member think that someone who defrauds a group of people for an aggregate of $900,000 should not be covered by this legislation? Is the $1 million a true benchmark of what is really a serious financial crime?

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

Mr. Speaker, we have had that question before. That is very true. For one person $50,000 could be his or her life savings, whereas for a billionaire, $1 million is probably small change. The government has an explanation as to why it chose $1 million, and the member should know that.

I agree with my colleague that a fraud is a fraud is a fraud. Taking $50,000 from a senior in my riding if that is all the money he or she has means everything.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, over the last three or four years, this has become a large issue. We have seen the reports on all the major television networks in North America. Bernie Madoff in the United States was sentenced to 150 years in prison, which gives us an idea of just how serious this has become. It also shows how one particular judge decided to engage the public to find out where the fever was on this. For the general public it is an incredibly large issue. It is beyond imagination. We do not realize how many people have been victims of this type of fraud and scam that has been perpetrated by people of despicable means and measure.

In this country we had the case of Earl Jones. It was so visceral to watch the coverage on television where as he was leaving the court and approaching his vehicle, he was attacked by the masses. I had never seen that before.

It gives us an idea of the heightened intensity about this issue. There are so many people involved and so many stories to be told that we would be amazed at some of the issues. There are people who come to me from my riding in Newfoundland and Labrador to talk about how destitute they are as victims of fraud. They are embarrassed at having lost their life savings. They do not want to bring up the situation with their children and other people in the community because they do not want to be embarrassed.

There are people out there, culprits who prey upon the weakest and most vulnerable of society. They know where they are and they know how to get them.

Bill C-21 goes a way to catching up with that. Perhaps it needs to go a bit further. The bill has been reported back to the House, and I think we are looking at one amendment.

Nonetheless, we will look at this and move on. This is something that we are going to be talking about again and again as the situation becomes more prevalent. In my own personal situation, people, primarily seniors, come to my office and talk about the sheer embarrassment of it. They tried to invest what little money they have to better themselves, and not so much themselves but their family, children and grandchildren.

It is incumbent upon us to have a serious debate about this. I appreciate everybody who is debating this in this House.

Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), includes a mandatory minimum sentence, which is an expression we have used a lot in this House. It includes imprisonment for two years for fraud valued at more than $1 million, and provides additional aggravating factors for sentencing, which I will touch on in a few moments.

It requires consideration of restitution for victims, which is a highly contentious issue as we have seen from all the media coverage not just in Canada but also in the United States. In dealing with the seriousness of this issue, my colleague from Lac-Saint-Louis mentioned that it is such a big issue in his riding. He has fought so well for this issue, and I want to thank him personally.

I do want to move on to the situation we find ourselves in right now regarding Bill C-21. For this side of the House, we proposed earlier that the mandatory minimum sentence of two years should apply to practices such as market manipulation of shares and of course the Ponzi schemes.

Conservative, Bloc and NDP members, in my opinion, need to explain why they refuse to stand up for all the victims of white collar crime. There are some discrepancies within this that I would like to see addressed. However, we are moving in the right direction as the House of Commons is addressing the legislation today and will soon pass it.

Principles behind the stricter sentencing rules are very important, but we also know that they are not enough to prevent frauds from happening, which is why we also have to seriously consider working on the public campaign. That is where we are falling down on the job. We need to do more to improve the way we deal with the situation and public learning of this type of fraud.

Certainly when it comes to enforcement and how our law officials enforce this will be a contentious issue as we move forward with this type of legislation. It is one thing to put these sentences into place, but the enforcement is going to be a tricky situation as we have witnessed in the past. We are compelled in the House to call upon the government to provide those extra resources upon which it can exercise the principles of the bill, which are to bring people to account, people who are the lowest form of life, if I can use that term, and I will use it because I think I am very apt in that description.

We should consider this from two perspectives. On one hand, we have to alert the people of what this fraud is and how they can protect themselves from this type of offence. On the other hand, we have to provide the resources as a government to allow the officials to enforce this and make sure people are brought to account. That is what we have been talking about in the bill right from second reading through committee and now at third reading.

We are glad to finally see legislation on the issue. We have called on the government to act on white collar crime for many years now. We have had this discussion for quite some time. This legislation is going forward and it is good that it is. We have seen the anger heighten dramatically because of people like Bernie Madoff, Earl Jones and what we see in the media regarding Ponzi schemes and the originator of them, Mr. Charles Ponzi himself.

I would like to turn to some of the research that has been provided to us as legislators in the legislative summary from the Library of Parliament. I would like to thank Cynthia Kirkby and Dominique Valiquette, both from the Legal and Legislative Affairs Division, Parliamentary Information and Resource Services.

The background on this goes back for quite some time. We have seen prior amendments to the fraud provisions. These amendments created a new offence of improper insider trading, increased the maximum sentence for the offences of fraud and fraud affecting the market from 10 to 14 years, and established a list of aggravating factors to aid the courts in sentencing. I certainly think that provides an ample guide for judges to allow a sentencing situation to take place. When it comes to sentencing, the enforcement is one area we may be falling down on.

Let us look at the integrated market enforcement teams. In 2003, the Government of Canada created the IMET program. Its funding is through the RCMP. Ten IMETs are operational in four of Canada's major financial centres. Their mandate is to investigate and lay charges for serious Criminal Code offences involving capital markets. At that point the enforcement was happening. We need to take that one step further. It was a good start with the IMET teams in the financial centres. The IMETs, continue to this day. From December 2003, when the program began, to March 2008, five investigations led to nine individuals being charged with a total of 29 Criminal Code offences. In fiscal year 2008-09, however, 17 individuals were charged with 979 counts.

There in itself we see a perfect illustration of the criminal intent that permeates throughout the system. These people get into the system and it shows how hard it is to bring these people to law and how important enforcement must be in order for these rules and measures to have some effect on all these people.

As I mentioned, 17 individuals were charged with 979 counts. A total of five individuals have been convicted since the IMET program was established and sentences range from 39 months to 13 years.

Going back on the history alone, members will see some of the statistics from C-21. This gives us a good glimpse of the situation. In 2007, 88,286 incidents of fraud took place in our country. About 10,001 cases of people were found guilty in the years 2006-2007. To break down those 10,001 cases, these are the following statistics: prison sentences, 3,580, resulting in 35.8%; conditional sentences being brought down on those people, only 8.7%; probation was the biggest at 60.3%; receiving fines, 12.1%; and restitution at that stage, 18.9%. Other sentences that were handed down included absolute conditional discharge, community service orders and prohibition orders as well.

Returning to the legislation at hand, let us take a look clause 2.1, which is the minimum sentence for fraud. This is the one that is probably getting most of the attention right now. Currently a person convicted of the general offence of fraud is liable under subsection 380(1) of the Criminal Code to a maximum term of imprisonment of 14 years where the value of the subject matter of the offence exceeds $5,000, or two years where the value of the subject matter of the offence does not exceed $5,000 and no minimum sentence is specified.

Clause 2 of the bill introduces a minimum sentence of two years imprisonment in case of fraud over $1 million. My colleague from Ontario brought up a good point earlier. When we try to come up with these numbers, in this case two years imprisonment minimum on a $1 million case, what if someone achieved $900,000? That is a pot of money. I know people who were working on $100,000 as their nest egg. What if they had been defrauded of $100,000? How do we address that in the situation where we make the cutoff at $1 million?

On the other hand, the minimum sentence applies solely to a person convicted of the general offence of fraud, again subsection 380(1) of the code. It does not seem to apply to other related offences, such as fraud affecting the market, fraudulent manipulation of stock markets, insider trading or the publication of a false prospectus. In the latter three cases, however, where the value of the subject matter exceeds $1 million, this remains merely an aggravating circumstance.

[The Deputy Speaker, Andrew Scheer]

The hon. member will have seven minutes left to conclude his remarks after question period. We will now we move on to statements by members.

The hon. member for Saint John.

The House resumed consideration of the motion that Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), be read the third time and passed.

[The Speaker, Peter Milliken]

When the matter was last before the House, the hon. member for Bonavista—Gander—Grand Falls—Windsor had the floor, and there are seven minutes remaining in the time allotted for his remarks.

I therefore call upon the hon. member for Bonavista—Gander—Grand Falls—Windsor.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I want to pick up where I left off and in the meantime one thing I wanted to bring to this debate, which I did not have a chance to do, is to note that even today we had the crown prosecution in Newfoundland and Labrador recommending a businessman involved in a 2006 spending scandal in Newfoundland and Labrador's legislature be given a three-year prison sentence and be ordered to repay $450,000.

That was coming from the situation we had in the province where some elected members of the day as well as some administrative members had defrauded the House of Assembly of Newfoundland and Labrador, which in turn defrauded the population of the province of several sums of money well in excess of $1 million. People were charged and brought to court for that and sentenced. Many of the sentences have been served, but nonetheless today we see one of the people involved in that case and the extent to which this can go to.

Picking up on Bill C-21 once more, I want to go through some of the notes that I discussed earlier talking about minimum sentences applying solely to a person convicted of the general offence of fraud, subsection 380(1). It does not seem to apply to other related offences and that is what I want to pick up on, that it is one of the reasons why we need to make this a much stronger piece of legislation. These are some of the loopholes that we brought up earlier as well, and I would like to touch on some of this such as fraudulent manipulation of stock markets, insider trading, fraud affecting publication.

In these three cases, however, where the value of the subject matter exceeds $1 million, that would remain an aggravating circumstance and therein lies the strengthening that needs to come back to this piece of legislation. Nonetheless, when we talk about criminal offences to institutions, that was also brought up by one of my colleagues. The institutions exempt are the larger offenders. In this situation it becomes a milder offence for the few that are charged even though they do receive extensive charges.

Clause 3 of the bill adds four aggravating circumstances to the list. That would be the magnitude, complexity, duration or degree of planning of the fraud committed was significant. In the form of sentencing this is a very key aggravating factor. The offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation.

The third aggravating factor: The offender did not comply with a licensing requirement or professional standard that is normally applicable to the activity or conduct that forms the subject matter of the offence. Finally, the fourth one contained within clause 3 is: The offender concealed or destroyed records relating to the fraud or to the disbursement of the proceeds of the fraud, which are prominent in many of the recent cases, which I will not go into because there are far too many to mention.

In addition to these specific aggravating circumstances, the general aggravating circumstances contemplated in paragraph 718.2 of the code will continue to apply. That includes the abuse of a position of trust or evidence that the offence was committed in association with a criminal organization. Moreover, the court shall cause to be stated in the record the aggravating and mitigating circumstances they took into account when determining the sentence. That is contained in 2.2 and that is the aggravating circumstances one must consider when talking about sentencing, which I agree with in this case.

With respect to restitution order 2.4, under the existing provisions a judge passing sentence for any offence under the code may order the offender to make restitution to the victim for damage to property or for bodily or psychological harm. That is very important. The court must give priority to restitution before imposing a fine on the offender. A restitution order is discretionary however, meaning that the judge may decide not even to grant it.

The bill states, “the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses”.

That is a new subsection within this legislation. In addition, “If the court decides not to make a restitution order, it shall give reasons for its decision and shall cause those reasons to be stated in the record”.

In the few minutes I have left, I would like to talk about one of the issues that came up in this particular legislation, and in other pieces of legislation, which is the victim impact statements. I have always ascribed this to be a very important element when it comes to the sentencing of people convicted of crimes. In this particular bill, clause 4 talks about that.

The code currently provides for a victim impact statement to be filed at the sentencing stage. For the purpose of determining the sentence to be imposed for any offence under the code, the court is required to consider any victim impact statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

Each and every time these frauds take place, we see in the evening news, in all the newspapers, that the impact of this is absolutely immense. So much of this occurs. Thousands and thousands of cases are reported. I would say the vast majority in this House know people, family members, maybe their own parents and children, who were victims of fraud. It is excruciating to go through and it could last for quite some time for those people defrauded of their life savings, their nest eggs, hundreds of thousands of dollars. Of course, in this particular case, we focus on the $1 million mark.

For the purpose of the code, “victim” means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence. To me, that seems to be a very valid and important part of this legislation.

[Glenn Thibeault, NDP, Sudbury, ON]

Madam Speaker, I would like to focus on what my colleague was speaking about in the last remnants of his presentation. He was talking about the victims.

The victims are the individuals who unfortunately seem to get overlooked. I do not think we see this bill going far enough. I can only refer to my own riding of Sudbury. Most of these victims are seniors who have invested their life savings. They have worked 30, 40 and sometimes even 50 years and put their savings and trust into these individuals who create Ponzi schemes. Unfortunately, when they come to retire they find out that the individual has taken their money, disappeared and has gone somewhere lush and lucrative. They never get the opportunity to live the life they wanted to in their golden retirement years.

While we are supportive of this bill, we would like to see this legislation go a little further to protect individuals and victims of these crimes. I would like to hear the hon. member talk a little more about how he would like to see this legislation protect victims of white collar crime.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Madam Speaker, I will pick up on some of the comments that my colleague from Ontario brought up earlier on the cut-off of $1 million.

What makes $900,000 below the mark, not as important as $1 million? That is a significant amount of money. As I said earlier, I know of people, who I will not bring up here for reasons of privacy, but they were seniors defrauded of close to $100,000. It was absolutely devastating. The rest of the family now has to carry these people through the rest of their years. How embarrassing is that for someone who has been a victim of fraud? Those who are at the extreme low level of the pool of morality, if I could use that term, victimized these people.

Is it strong enough? No, it is not, and that is one of the issues, plus the fact that this needs to be publicized. We also need to put strong enforcement measures in place.

We talk about statistics all the time, but sometimes we have to put a face to this and look at ways to make changes, amendments, to further this legislation into the future. Down the road as the circumstances change, when it comes to the fraudulent behaviour of some people, the legislation has to be flexible and nimble enough to take care of this.

Talking about statistics, for example, 10,001 cases were found guilty in 2006-07. There were 88,286 incidents of fraud reported. That is a big number. Behind those numbers are families and individuals, absolutely devastated.

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

Madam Speaker, the member knows that all parties in Parliament are supporting this bill. It is at third reading and has been through committee. It is essentially a good bill, particularly with the addition of the restitution orders and community impact statements.

The fact of the matter is that the problem is much broader than what this bill addresses. The previous government set up the IMET program through the RCMP back in 2003, and after five years there had been a mere five convictions on white collar fraud. Meanwhile, in the United States under similar circumstances there are 1,200 convictions under its laws.

Clearly, we have to go beyond what this little piece of legislation is going to do for us and not give the Conservatives the satisfaction of being able to campaign and say they solved the problem of white collar crime, because that is not being done with this piece of legislation. It is a good bill, but we need to do more than what this bill indicates.

I have a further question for the member if there is time.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Madam Speaker, I would love to promise him that I will not be so verbose as to not provide him time at the end, but I cannot since I make a living speaking, though I will see what I can do.

The two points he brought up earlier are very valid. Restitution orders and community impact statements are certainly profound measures within the bill that go a step in the right direction. For the very reason that we are all in the House trying to support this legislation, I have the same concerns he does, definitely.

I looked at some of the evidence that was put forward through the IMET back in 2005 and, for example, in 2008-09 17 individuals were charged with 979 counts. A total of five individuals have been convicted, as he pointed out, since the IMET program was established. It is a valid point that he brings up because, again, let me repeat the numbers, a total of five individuals have been convicted since the IMET program.

I mentioned some of the statistics earlier. More than 10,000 people were charged, more than 80,000 were reported, 88,286 incidents of fraud in 2007 alone. Yes, there is a discrepancy that we need to address, and I hope that in the future we will be able to do that. For these reasons of restitution orders and community impact statements, we need to pass this legislation immediately, but we need the broader discussion to take place.

That is why in the future, community impact statements will be very important, because we have seen the absolute devastation, which fraudulent behaviour creates, played out on the news each and every night, especially with seniors, as my hon. colleague from Sudbury pointed out. The average age in my riding is the mid 50s. Do the people committing the frauds know this? Darned right that they know this and they take advantage of it every day.

It is hard enough to educate people on the fraudulent behaviour that is out there, but there are people like Earl Jones and Madoff conducting these Ponzi schemes. They are cleverly crafted, incredibly well thought out and they can fool the smartest of people, as evidence has shown in Ponzi situations especially.

The devastation is no less severe because someone considers him or herself to be smart in all areas of finance. Therefore, it falls upon us to become the protecting agent, especially of those who are most vulnerable. If the most shrewd in our society and those who are incredibly smart in the financial ways of the world are getting fooled, what does that say about the average seniors who know very little about financial securities, other than the fact that they balance their chequebooks? That is the only financial responsibility that a lot of seniors have participated in for the past 30 or 40 years.

This is where this legislation needs to be more proactive, and I agree with the broader aspect of what my colleague is saying.