Justice Committee on March 11th, 2008

[William Bartlett]

As the minister noted, the bill deals with all of the aspects of the chain of acts that lead to what in the bill is called identity fraud, where you actually use false identity to commit a fraudulent offence, the collection of the information with that intent. There are provisions dealing with the instruments you can use to create a false identity, and then the final end-use offences. By breaking it down this way and capturing the various aspects of it, you have additional tools to get at the kind of organized activity you're speaking of, where very often those steps are broken down. And different groups of people, sometimes in different countries.... Organized crime might quite commonly collect identity information on Canadians, use that to produce false credit cards or other kinds of false identity in Romania, and then the documents are used in Britain.

If the only thing that goes on in Canada is the collecting of the identity, that's very difficult to get at if you have to follow the chain through. But if you have an offence that deals with the collecting of the information in Canada in order to pass it on, and then passing that information on, then you have something that can capture whatever stage in this chain of events occurs here that you can capture the evidence about.

It also simply helps to deal with the whole.... Even if it's one person who's doing all of these, you can catch them at an earlier stage or you can catch them at various stages of what they're doing. So whether it's broken down and several different people are doing different stages or it's the same person, it gives you far more tools to deal with, as you've described it, the very sophisticated kind of activity that's both national and international in scope.

[Rob Moore, Conservative, Fundy Royal, NB]

There's a perception out there, and I think I've seen some evidence that this is the reality, that certain types of identity theft.... While none of us are completely safe from identity theft as the law is now, in some instances it is seniors who are very much the focus and the target, overwhelmingly, over other demographics. Is there anything you can enlighten us on regarding that? Is that indeed the case in some instances, where seniors would be specifically targeted for some types of identity theft?

[William Bartlett]

I don't think there's any information that seniors are targeted for a particular kind of identity theft. They certainly are targeted for some of the end-use fraud schemes. There are fraud schemes that appear to have been fairly carefully tailored to target seniors. Undoubtedly, they're probably somewhat more vulnerable to the earlier stages as well, the actual techniques that are used to gather the identity information. It's a very sophisticated operation; the technological sophistication is amazing at times. Seniors are probably much more vulnerable to all of the various techniques they use at all stages of this kind of fraud.

I'm not aware of cases where they seem to have tried to take the information particularly from seniors. There certainly are cases where seniors are a target population for the end use of the fraud.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Lee, do you have a quick question?

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

Yes, I have just one question.

Clause 10 of the bill creates a new section 402 involving identity theft, which, Mr. Bartlett, you were just referring to. In the new section 402.2, describing identity theft, one of the components of the crime is that there is a reasonable inference of an intention. It struck me as odd that in a Criminal Code offence, in order to convict, you have to have evidence or proof beyond a reasonable doubt--that's the standard, beyond a reasonable doubt--when buried in the definition all that is required is a reasonable inference. If it is only a reasonable inference required in the section--if that's all the proof required--doesn't that undermine the need to prove beyond a reasonable doubt? In other words, if the reasonable inference is a weak link in the chain of the components of the offence, that could undermine the ability to convict based on evidence beyond a reasonable doubt.

I'm simply asking if that has come up. It's only my initial reaction to reading this section, and it strikes me as slightly incongruous.

[William Bartlett]

The crown would ultimately still be required to prove its case beyond a reasonable doubt. The offence covers possession, and if they can prove the possession beyond a reasonable doubt.... The reasonable inference that the information is intended to be used eases the burden on the crown somewhat, and at some point may shift the burden of adducing evidence to the accused, but ultimately the trier of fact will still have to be satisfied of all of the required elements of the offence. This is simply a matter of, at a certain point, shifting a certain evidentiary burden to the accused, and it is used in other sections of the code and has been upheld by the courts.

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

Good. Those references are very helpful. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

It is now five o'clock, and we have committee business to attend to.

I want to thank Mr. Bartlett and Mr. Ram for their appearance here. I think there were a number of questions, and we certainly appreciate the response. Mr. Ram, unfortunately, we never had to call upon you for any response, but your presence here was appreciated. Thank you.

We'll suspend for one minute.

[Proceedings continue in camera]

[Public proceedings resume]

[The Chair, Conservative, Art Hanger]

We're good to go.

Mr. LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman, and thank you, colleagues.

I'm conscious of the fact that the bell is going to ring for a vote soon; therefore, I'll be very brief.

Mr. Chairman, I would like to move the following motion, notice of which was given last week to the committee. The motion, of which the committee has a copy in English et en français évidemment, would read as follows:

That, in order to determine whether Section 119 of the Criminal Code and Section 41 of the Parliament of Canada Act currently serve as effective deterrents in preventing attempts to bribe Members of Parliament, this committee hold additional meetings specifically for the purpose of conducting an immediate study into allegations that Chuck Cadman was offered financial inducements in exchange for voting with the Conservatives in the House of Commons.

Mr. Chair, that would be the text of the motion. I understand a colleague may wish to make a friendly amendment in a second.

Mr. Chairman, you'll notice that we've asked for additional meetings. Many colleagues have been at this table longer than I have, and I respect that this committee has, up until now, and certainly from my experience at the committee, worked in a collegial, non-partisan way, with a very heavy agenda because of the legislation that ultimately is referred to this committee. In no way are we seeking to disrupt that process. We're not seeking, I hope, to make the committee more partisan than necessary. That's why we'd like additional meetings.

Mr. Chairman, in our view, there should be three or four additional meetings. That would probably conclude the matter. And if this motion passes, we would then hope the steering committee could quickly look at a list of witnesses and schedule perhaps our first meeting for the beginning of April.

Merci, monsieur le président.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. LeBlanc.

I have had an opportunity to look at your motion and I do have a judgment, which I would like to put forward.

I would first begin by saying that I am going to rule the motion out of order, but I do have an explanation.

I rule along two points, the first being that this motion falls outside the mandate of this committee. Second, this motion requires the committee to act in a manner contrary to the purpose it was created for.

On the first point, in relation to the mandate of this committee, it is clear that the procedure and House affairs committee is where this study should be taking place. I will save members from reading the entire Standing Order related to mandates for committees, but I will draw your attention to Standing Order 108(2) which reads:

The standing committees, except those set out in sections (3)(a), (3)(f), 3(h) and (4) of this Standing Order, shall, in addition to the powers granted to them pursuant to section (1) of this Standing Order and pursuant to Standing Order 81, be empowered to study and report on all matters relating to the mandate, management and operation of the department or departments of government which are assigned to them from time to time by the House. In general, the committees shall be severally empowered to review and report on:

(a) the statute law relating to the department assigned to them;

(b) the program and policy objectives of the department and its effectiveness in the implementation of same;

(c) the immediate, medium and long-term expenditure plans and the effectiveness of implementation of same by the department;

(d) an analysis of the relative success of the department, as measured by the results obtained as compared with its stated objectives; and

(e) other matters, relating to the mandate, management, organization or operation of the department, as the committee deems fit.

As committee members can see, there is no fodder here for an investigation into specific events outside the management and effectiveness of the justice department. The justice department is responsible for drafting legislation, not the implementation or application of that legislation. That would be a matter for the public safety committee, which oversees law enforcement agencies.

On the same point, members are quite aware that the central figure in this business was Mr. Chuck Cadman. As a member of Parliament, Mr. Cadman was subject to the conflict of interest code, which members know is part of the mandate of the procedure and House affairs committee. Under Standing Order 108(3)(a)(viii), the procedure and House affairs committee is mandated to review and report on all matters relating to the conflict of interest code for members of the House of Commons.

This motion also explicitly names section 41 of the Parliament of Canada Act. As the department assigned to procedure and House affairs is Parliament itself, the provisions of 108(2)(a), which delegates the statute law relating to the department assigned to them, clearly relegate the Parliament of Canada Act to the procedure and House affairs committee.

While there is no specific mention of this fact in the motion, it has clearly been alleged in the House of Commons in relation to events named in this motion that the then leader of the opposition had a role to play in these events. While there has yet to be any definitive proof of the member's involvement, and the claims made thus far are more defamatory than they are substantive, that member would also have to be investigated under both the Parliament of Canada Act and the conflict of interest code for a member of Parliament, again putting this study under the mandate of procedure and House affairs.

With regard to my second reason, it is my ruling that this motion requires the justice committee to do something beyond what the committee was created to do. This motion would require our committee to act as a trier of fact, which is the role of the judiciary and should be respected as such. As we all know, the courts are charged with applying and interpreting the law and not with creating the law. In response, the House of Commons and the membership thereof is expected to create laws and to review the findings of the courts to see if those laws are adequate.

It is a well-established principle that neither parliamentary committees nor the Speaker of the House is in a position to determine questions of fact. Indeed, when disputes as to questions of fact have arisen in the House, the Speaker has consistently taken the position that he is simply not prepared to rule in favour of one member against another. Similarly, this committee is not a trier of fact and should not be expected to make such determinations.

A parliamentary committee can hardly be expected to be an unbiased, impartial body. Further, the rules of its operation and the limited questioning opportunities inherent in our rules of order simply do not allow for proper cross-examination or fact-finding as is customarily found within a judicial or quasi-judicial entity. I'd suggest that we would all be in agreement with the statement that we are neither properly trained on this committee nor in a position to make any such determinations as to matters of fact. It's one of the basic tenets of parliamentary law that the Speaker, and by extension parliamentary committees, does not engage in such matters that would require him, them, or us to make such determinations of fact.

I think it would be self-evident that this committee is not in a position to make any kind of legal ruling to consider issues of legalities or to make pronouncements as to operational intricacies of legislation and regulations. The committee isn't a court. It's not a tribunal. Its personnel and its membership are not legally trained. I don't think we could be described as being entirely unbiased or non-partisan. Therefore, this matter is a matter for the courts to decide. As no judicial or quasi-judicial body has made a finding on this topic, this committee cannot commence with a review of the effectiveness of this clause until such a finding is made. This motion is deficient and out of order.

On a personal note, I would like to make the observation that this committee has worked well in the past despite the various partisan positions that members have brought to this committee. We have always agreed to debate legislation when it was handed to us. I would hate to see this committee descend into political gamesmanship, which has ground so many of the other committees to a halt.

Our committee is responsible for a significant load of both government and private members legislation. That is what our committee is tasked with and this is what Canadians sent us to Ottawa to accomplish. I would be very disappointed if our committee was turned into a partisan witch hunt that went down the road of unsubstantiated scandal for the sake of electoral grandstanding.

For these reasons, I find this motion out of order.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I wish to speak.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I am under an obligation, beyond the moral judgments that you have passed, to appeal your decision. I think you have made a bad decision. I challenge it, I ask that it be overturned and I call for a recorded division on your decision. I challenge and appeal your decision.

[The Chair, Conservative, Art Hanger]

On that basis, Mr. Ménard and committee members, I am going to step out of this room. I am not going to sit as chair. If you seek to bring someone forward from the opposition to sit as chair, then you may do so.

I believe this committee has functioned very well up to this point. We have engaged in 14 pieces of legislation. This is another issue that has created--

[Réal Ménard, Bloc, Hochelaga, QC]

Point of order, Mr. Chairman. I don't know what you are talking about. It is my prerogative as a member of Parliament to appeal your decision. You say you're going to leave the chair and you give us a lecture.

[The Chair, Conservative, Art Hanger]

You have the prerogative to appeal any decision, but I am not going to sit here as the chair. I will not call it. No. I am going to remove myself from the position of the chair.

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

In the absence of the chair, we move to the vice-chair.

Which vice-chair would...? I'm not vice-chair.

[Réal Ménard, Bloc, Hochelaga, QC]

Me neither. I'm not going to take the chair.

I'm not going to take the chair.

I move that Mr. Comartin, as our most senior member, take the chair.

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

I'm going to make a suggestion that the matter not be disposed of today, that--

[Réal Ménard, Bloc, Hochelaga, QC]

No chair?

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

Well, we can put a person in the vice-chair. I'm going to suggest that a person take the vice-chair....

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Clerk, can you give us an official ruling on what we can do without a chair in the seat, before everybody decides to turn the microphones off?

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

Mr. Murphy, the vice-chair, will take the chair in the absence of the chair.

[The Vice-Chair, Liberal, Brian Murphy]

Ladies and gentlemen, I'm here.