Justice Committee on Feb. 22nd, 2007

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Okay. That's good.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

I'm going to suspend for two minutes, and we're going directly into clause-by-clause.

[The Chair, Conservative, Art Hanger]

I call the committee to order.

It's my understanding there is general or unanimous agreement on these amendments. The government amendments G-1 to G-9—with the exception of G-2—are all inadmissible. However, it's just a point of making it very clear that the government intends to delete those particular clauses.

If we have unanimous consent here among the committee members, we will deal with clause 1 and apply that result to clauses 3 to 9. We'll deal with the clauses in that fashion. So the amendments are all inadmissible, with the exception of G-2. We will begin with clause 1 and apply that result to each of the rest of the clauses from 3 to 9.

(Clause 1 negatived)

[The Chair, Conservative, Art Hanger]

That's unanimous.

That vote shall now be applied to clauses 3 to 9.

(Clauses 3 to 9 inclusive negatived)

(On clause 2)

[The Chair, Conservative, Art Hanger]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I move G-2. I think it has been explained.

[The Chair, Conservative, Art Hanger]

Indeed.

Mr. Lee.

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

I want to propose a subamendment.

I would like to add to the proposed paragraphs 362(1)(e) and 362(1)(f). Let's deal with 362(1)(e) first. I would like to add the words “or by theft” after the words “false pretence” in proposed paragraph 362(1)(e). That is my proposal that I'm moving.

For proposed paragraph 362(1)(f), it's the same type of amendment.

Do you want to deal with them separately? The same issues will be coming up.

[The Chair, Conservative, Art Hanger]

Deal with both.

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

I'll describe proposed paragraph 362(1)(f). Similarly, after the words “false pretence”, I would add the words “or by theft”.

[The Chair, Conservative, Art Hanger]

So you're suggesting it read “false pretence or by theft or by fraud”?

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

If the second “or” is redundant, I would not move that.

[The Chair, Conservative, Art Hanger]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I would not support that, for some of the reasons we had in the discussion and from the expert witness testimony.

We can't forget that theft is already illegal. What we're talking about is obtaining information by false pretense or by fraud. I think by throwing theft into the mix, just the idea of theft.... There are other examples; we only began to go down that road. But by throwing theft into the mix, it could possibly open up a whole can of worms that we haven't really had an opportunity to think out at this point.

So I wouldn't accept that subamendment to our government amendment. I can foresee where that could be problematic. We have to remember—and you raised the scenario where someone steals my wallet—that for the last hundred years, if someone steals your wallet, that would be a criminal offence.

Mr. Murphy thinks stealing someone's wallet is not an offence? I'd like to hear that explanation.

[The Chair, Conservative, Art Hanger]

In the chair's opinion, this could be just outside the scope. We're dealing with false pretense. We're dealing with fraud. I would like to seek further counsel from the departmental officials.

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

Mr. Chairman, before that, I didn't accompany my motion with any remarks. If you'd just allow me 15 seconds....

[The Chair, Conservative, Art Hanger]

We'll give you that opportunity, Mr. Lee, right now, and then we'll look to the departmental officials.

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

Mr. Moore has said that theft is already a criminal offence. If you look closely at the amendment, the concept and the term “fraud” is included there, and fraud is already a criminal offence. So the fact that theft is already a criminal offence should not by and of itself be a reason why theft should not be a component of this section.

But I had discussed with officials earlier, rather than using the concept of theft, which involves criminal intent, as does fraud, the common law concept in tort of conversion, which doesn't necessarily involve criminal intent. False pretense does not necessarily involve criminal intent. That concept is included here.

If my subamendment doesn't pass, at least the record will have a discussion of the issues. I'm hopeful it will.

Back to you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Mr. Bartlett.

[William Bartlett]

I would suggest, Mr. Chair, that the scope of the bill is addressing a particular kind of activity. False pretense, as in fraud, is one of kind of activity, and theft is something else. And I wouldn't have thought that theft was the kind of activity that was within the scope of the bill.

In addition, I don't know what theft of personal information, by itself, really means. So I would caution against introducing into the Criminal Code a concept the law hasn't recognized up to this point; that is, theft of your wallet, yes, theft of a car, yes, but theft of information as such, information not by itself having any value, that is simply inherent in the concept of theft of what you're stealing, that what you're taking has value.

Conversion is a civil concept, which is, quite frankly, rather difficult to deal with in civil law and in my own opinion would not be a helpful concept to introduce into the criminal law.

So the concept of theft of information is simply, as Mr. Moore has noted, rather problematic. You're introducing into the law a concept that it has not recognized up to this point and is going to have some difficulty with. I'm not really sure what it would add. If you add problematic concepts to something, then it tends to undercut the effectiveness of the overall provision.

So those would be my comments, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

That raises a bunch of questions.

In that this section 362 is the only place that identification information is used, the first question I might have for you is--I think you've answered it--the theft of identification information is certainly not an offence, unless it's put in here.

The second point is, if I find Mr. Moore's wallet on the ground–I do not obtain it through false pretense or by fraud, I just find it on the ground–and I use it with the intent to commit an offence of fraud and the other, section 403, have I committed an offence?

Let's do two years down the road, where identification information has been judicially considered and we know what it is–we don't know what it is because we're just creating it. I find identification information on the ground and I get a good lawyer, and I don't get it by these means.... Mr. Lee's amendment is about the means of the obtaining of the identification information. If it's not an offence already, how is it then redundant? It may well be out of the scope of the act, and I understand that, but it's certainly not redundant. Wouldn't it help?

[William Bartlett]

I think, Mr. Murphy, your example points out the problematic aspect of this. If you find somebody's wallet on the ground, you haven't committed theft. If you lift the wallet up and open it up and look at the information, have you committed theft of the information? I don't know, frankly.

And I'm not sure I'd want to ask a court to decide whether or not opening up the wallet and looking at the information was theft of the information. The means by which you acquired the information--

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It could be conversion.

[William Bartlett]

--didn't involve--