Finance Committee on June 1st, 2021

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Brown, these are all maximums, correct?

[Justin Brown]

That's correct.

[Ed Fast, Conservative, Abbotsford, BC]

You have suggested that this would not in any way impact the discretion of the courts in levying sentences. If we're looking at doing something substantive in addressing things like money laundering, why would we not look more carefully and increase the use of mandatory minimum penalties?

Quite frankly, I have yet to be convinced that limiting the discretion of judges in select cases is not an appropriate response. I have a legal background. I practised law for many years and I followed the law carefully over those years. I do not have an aversion in select cases to putting some parameters around the discretion that judges would have, especially for something as significant as money laundering.

On the role that FINTRAC plays, when you look at how foreign money and money laundering could be playing a significant role in the unaffordability of housing, why would we not revisit the issue of mandatory minimums?

I'd be pleased to hear your comments on that.

[The Chair, Liberal, Wayne Easter]

I think it's more a policy decision of government, really, Ed, but if someone wants to take a stab at it, we'll go with it.

[Justin Brown]

I would concur that I don't think any of the officials here tonight are able to opine on the broader policy question. I would note, and, Gabriel, please correct me if I have missed something here, but the offences listed here and where those proposed changes relate to contraventions of this act, of the PCMLTFA—that is things like failing to report to FINTRAC or failing to follow a directive from the minister under this act—the Criminal Code would deal with the broader question of criminal activity.

I would suggest perhaps your question would relate more to the Criminal Code provisions of predicate offences than to violations of different publications with respect to complying with anti-money-laundering rules.

[Ed Fast, Conservative, Abbotsford, BC]

Okay, I just want to follow up on my question, since the chair suggested that this was a policy decision that belongs in the political realm rather than within the bureaucracy. Has anyone in the political realm instructed anyone in your department that you are not to implement or craft legislation that would have mandatory minimums?

[Justin Brown]

That goes beyond my ability to testify. I apologize.

[Ed Fast, Conservative, Abbotsford, BC]

For anybody who is on this call, has there been any direction, political direction, that you shall not use mandatory minimum sentences?

[The Chair, Liberal, Wayne Easter]

I think that is above their level, Ed.

Ms. Jansen.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I'm just wondering this: How does this work with, say, a financial institution, when it comes to imprisonment? Who goes to jail? Is it the bank manager or the account manager? How does that work?

[Justin Brown]

It would depend on the investigation and what charges were brought against whom, which would lie with law enforcement and the public prosecutions group within Canada. The law, as it's written—and it's not being proposed to be changed—is “every person or entity”. The scope could cover either an individual or a legal person.

[The Chair, Liberal, Wayne Easter]

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

My question is very similar to Ms. Jansen's. Having been around the board table of a credit union for many years, I know, for example, that they're required to be compliant with a very stringent set of FINTRAC requirements. If all of a sudden those requirements aren't met or if they're contravened, whether it's intentionally or inadvertently, who goes to jail? Is it the CEO, the board member? Do you lock up the credit union, bring in the paddy wagons and take them all away? What do you do? What are you envisioning?

[Justin Brown]

I would say, just recognizing the limits of my own expertise, that I am here as an expert on financial sector policy, not broader criminal law. I will provide a broad response, since it would be at the discretion of FINTRAC to indicate to law enforcement where it thinks there is a violation or contravention of these provisions. Law enforcement would then exercise its discretion to investigate.

Ultimately, it would be the decision of the relevant prosecution group to pursue those charges. At every step of the way, they would assess the context and use their judgment. At the end of that, there is the judiciary, which would use its discretion at the end of the day.

[The Chair, Liberal, Wayne Easter]

All right.

(Clauses 172 to 176 inclusive agreed to on division)

(On clause 177)

Now we have clause 177.

[Ed Fast, Conservative, Abbotsford, BC]

On this one, Mr. Chair, if I could just ask one question of our officials....

[The Chair, Liberal, Wayne Easter]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

In 2017, there was an audit report done that found that FINTRAC had failed to meet legal reporting requirements. It's pretty concerning when FINTRAC itself fails to meet reporting requirements, especially in light of evolving technologies. Is it your assessment, as officials, that the amendments that we have just reviewed and passed on division, except for this last one, are going to address FINTRAC's obligations to report?

[Justin Brown]

I apologize, but I'm not immediately sure of the report of the audit to which you're referring. I know, for example, that FINTRAC gets assessed by the Office of the Privacy Commissioner every few years.

[Ed Fast, Conservative, Abbotsford, BC]

That's the one.

[Justin Brown]

FINTRAC would take into account the recommendations of that audit and implement changes to bring its practices into compliance. I've had various conversations with FINTRAC. The protection of privacy is fundamental. Also, respecting charter rights is absolutely fundamental to this piece of legislation and to everything FINTRAC does. I can say without a doubt that it's at the forefront of everything it does.

[The Chair, Liberal, Wayne Easter]

Thank you. Shall clause 177 carry, on division?

(Clause 177 agreed to on division)

(On clause 178)

We'll go to division 8.

I'm not sure if Mr. Brown and Mr. Ngo are still here for that one.

[Justin Brown]

I think the two of us are done. Thank you.

[The Chair, Liberal, Wayne Easter]

Okay, thank you, both, very much for appearing.

We'll go to Ms. O'Brien on division 8, starting with clause 178 on page 198 of the bill.

[Erin O'Brien]

Terrific. Thank you so much, Mr. Chair. I look forward to discussing these clauses with you and the committee.

Mr. Clerk, can I please ask that you also invite in Julie Trepanier, Richard Bilodeau and Manuel Dussault?