Evidence of meeting #19 for Justice and Human Rights in the 39th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.
A recording is available from Parliament.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Well, you'll get no disagreement with this. I know Mr. Bartlett will want to make a comment.
You're right about the wording; it's slightly different from the section you referred to.
I'll read it. I think this is the one. Is it proposed section 402.2?
Conservative
Rob Nicholson Conservative Niagara Falls, ON
It says:
Everyone commits an offence who knowingly obtains or possesses another person’s identity information in circumstances giving rise to a reasonable inference that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.
Any time you draft these things, you draft them in a way that you believe is going to work and that will improve the law on this. I think it's straightforward.
That being said, Mr. Bartlett, would you comment on it, please?
Senior Counsel, Criminal Law Policy Section, Department of Justice
The housebreaking tools offence is a question of simple possession, so it is qualified by the “without lawful excuse”, the general defence. In this case, it's quite specific to possession of housebreaking tools under certain circumstances, for example, out at night near somebody else's house as opposed to in your--
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Bartlett, because I'm going to run out of time--I'm sure I'm going to get cut off--can you give us a scenario? Pretend you're the prosecutor and you have a fact situation in front of you. Is it possible to do that?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Sure. What this requires is that the possession be for the purpose of using it for an offence that involves fraud or deception, or passing on to someone else who will do that.
If somebody is found in possession of identity information relating to multiple people, and that's a very common scenario, that would certainly be a circumstance that could give rise to the reasonable inference that they intended to use it for a fraudulent or deceptive offence.
It might be the nature of the information, particularly, say, financial information, and again, particularly financial information relating to either more than one person or very extensive financial information concerning one person to whom the person in possession of the information had no particular connection. That could give rise to that inference.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
Mr. Minister, it was good to hear that this legislation is finally on its way. It's been long awaited by the public, and it has a lot of features that are new and innovative, particularly in dealing with the preparatory stages of having information.
I wonder what steps you might take to ensure that the public is aware and fully educated in terms of the provisions there, because they are new provisions.
Also, while you were speaking, Mr. Minister, you indicated that a lot of the legislation deals with catching up with technological changes that are happening in the criminal world, of course, and they use that to advantage. Is there any provision in the wording of this material that would allow for any forward type of thinking that may happen in the criminal element that this legislation can attach itself to in anticipation of other uses? This is probably more a technical question that can go forward.
Finally, when dealing with the international aspect of it, there are obviously issues with jurisdiction and to what extent this bill is able to deal with matters beyond the country of Canada itself.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you very much.
Let me just take your last question first, Mr. Komarnicki. There were three parts to it.
I didn't have the name right in front of me. It was the UN Convention on Transnational Organized Crime. That was what the Government of Canada ratified in 2002. That will allow us to seek mutual legal assistance from other like-minded countries that have signed on to this. Part of our object in drafting this is to make sure we comply with the convention, and by complying with the convention, it puts us in a position where we can ask for extradition assistance from other countries, because we're talking about the same thing. I think there has been certainly a greater recognition in recent years that to the extent that we can harmonize our laws with the laws of other like-minded countries, we're moving in the right direction.
That leads me to the second part of your question. You'll find that when you deal with the Criminal Code, first of all, you're dealing with a document that is 116 years of age. It wasn't new in 1892; it was a collection of a number of statutes that were put together. Making sure it's updated has been a constant challenge. When I was here back in the eighties, one of my colleagues, Blaine Thacker, talked about completely revising it, redoing the whole Criminal Code, and modernizing it. That's a daunting task. It would be a huge undertaking, but it made a lot of sense at the time.
The approach we are taking, of course, is to look at the sections, try to keep up with the technological changes, and come forward with those amendments. We tried to be as broad as we could with respect to the inclusions. We listed a lot of examples. You'll see a couple of grocery lists in a couple of sections of the bill where we try to capture what is used today as information.
I'm keenly aware, as you are, as implied by your question, that you must constantly revisit these things to make sure. You have Criminal Code sections that talk about telegrams and telegraphs. This is very outmoded, and again, we have to stay on top of these.
Again, one of the things we most welcome about this is that you are getting those people who are at the preparatory stage. As I indicated, I think to Madam Freeman, in talking, for instance, with the Montreal police force, they're saying they uncover these schemes, but the people who are in Canada many times are not subject to the present Criminal Code. They get rid of this information outside the country, and this information is used for improper and illegal purposes outside of Canada. It makes it very difficult then to deal with this. This is why I think this will be very welcome.
In terms of your comments with respect to international cooperation, if part of the offence is being committed in Canada and part of it's in the United States or Europe or another place, it will be welcome because we'll be able to take action against those individuals who are part of this, just as they will, rather than the present situation, where many times the police have to throw up their hands because the present Criminal Code doesn't cover those provisions.
So you're right, it's a comprehensive approach to a very specific issue, and it will be most welcome.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
One of the last points, of course, was that there are differences between the private member's bill and what you have here, and how comprehensive it is and how it ties into the Criminal Code. Obviously, there are some technical amendments, and when you look at the bill itself, it's “technolese”.
Will there be efforts made to put this is in common or lay language to the public and do a public education campaign on what is changing, what's available, and how it might end up benefiting specific groups of people?
Conservative
Rob Nicholson Conservative Niagara Falls, ON
There's no question about that. The department has been very proactive in getting information out to people, and certainly on its website they make this information available. We have to get the message out to law enforcement agencies and crown attorneys, and again, they stay apprised of these changes. I can tell you I have people calling my office right now wanting to know when some of these changes are coming into effect. So I think it will be readily welcomed; they will be right on top of this and they will know what's in here because they have been asking for some of these provisions for quite some time.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Komarnicki.
One thought that had crossed my mind as a former investigator--and I know some of my former investigative colleagues had a problem--relates to situations in which an individual is in possession of a number of blank Visa cards, say, or blank cards with no identity information on them. Let's say there are 150. It could be that they might come across them as a result of another investigation. Is that a charge under this legislation, and is it enough to trigger further investigation?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Well, it would certainly be enough to trigger a further investigation.
The cards themselves aren't covered by this legislation, although this legislation deals with it if they have the kind of equipment used to produce cards. It deals with instruments for general forgery purposes.
If all you had were the blank cards, that would trigger further investigation, but generally in those circumstances there are going to be some other facts that, when added together, will probably trigger something in this legislation.
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
I have a number of technical questions. Maybe the minister will want to answer them, but it's as likely that Mr. Bartlett would probably want to take a stab at them, Mr. Minister. However, you're equally competent.
I'll just confirm for the record--
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
No, no, it's not that at all. It's just that they're very technical. I don't even know the answer.
I just want to confirm whether the term “credit card”, which we use here, includes a debit card.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes. There is a specific definition in section 321--
Senior Counsel, Criminal Law Policy Section, Department of Justice
--that makes it clear that it includes all of those kinds of cards used to draw financial resources.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
In relation to clause 9 of the bill, in my mind there's some confusion about who a public officer is. The section refers back to the definition of public officer in section 25.1 of the Criminal Code, where the definition of public officer is “a peace officer, or a public officer who has the powers of a peace officer”, and who would have been designated. This issue around a public officer is important because a public officer, in clause 9, gets a pass. It says:
No public officer as defined in subsection 25.1(1) is guilty of an offence...if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity
As I read it, a public officer is going to have to be designated, and if they're designated, the exemption provisions here may--I'm only suggesting--conflict with and are going to have to be congruent with the other general exempting provisions of section 25.1, because we have placed in the law there certain exemptions for public officers.
I'm worried about a conflict here. I haven't had the chance to think it through. Has the department--line by line, word for word--walked through the exemptions in clause 9 of this bill and the exemptions in section 25.1 for public officers? I'm going to ask you point-blank: is a member of the military a public officer? Are you a public officer if you're a member of the military police and you're out doing military reconnaissance and you've got to ask somebody to use a false document somewhere to get by a checkpoint? God forbid that should ever have to happen in Canada, but this bill reaches transnationally, in any event. Is a member of the military a public officer if he or she is not designated?
Senior Counsel, Criminal Law Policy Section, Department of Justice
This does not require that that public officer be designated for the purposes of section 25.1. There is a definition of public officer in section 2 of the code. It includes:
(a) an officer of customs or excise,
(b) an officer of the Canadian Forces,
(c) an officer of the Royal Canadian Mounted Police, and
(d) any officer while the officer is engaged in enforcing the laws of Canada relating to revenue, customs, excise, trade or navigation;
Now, most of these people are actually going to have peace officer status. Some public officers have law enforcement duties without specific peace officer status, so an officer of the Canadian Forces is a public officer. Military police actually have peace officer status as well, but this is simply intended to cover any public officer with--
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Is Corporal Smith a public officer? That's the military Corporal Smith.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Well, they have to be an officer to be a public officer, and they have to have law enforcement responsibilities.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
No, this guy would not. This guy is out doing reconnaissance and he has to show a false document to get by a checkpoint somewhere. He has to use a false identity.