Justice Committee on Sept. 17th, 2009

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Minister.

[The Chair, Conservative, Ed Fast]

Thank you very much.

Next we have Mr. Murphy again, for five minutes.

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

I couldn't agree more that we should get on with this. It is exactly what we said about Bill C-27 before you guys pulled the plug and had an unnecessary election.

A moment ago, you ascribed comments that were mine to Mr. LeBlanc. We had a conference and we don't know who should be more upset. So just to clear that up immediately—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I certainly give credit to both of you gentlemen, because I'm sure you both agree with that particular amendment that was made by the Senate.

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

Minister, I have two brief questions.

These crimes will involve, in many cases, financial loss. A quick example, as a concern, would be the lugubrious fashion with which the Criminal Code treats civil loss. I assume that the application after conviction will apply, but for any of us who know this, it's a bit inefficacious. Is there some move in the department to update the aspect of restitution for victims? It is very much pervasive in our system now for people to have civil loss as a result of criminal activity.

The second thing I'd like to know perhaps could be answered by the departmental officials.

This is complaint-driven. There has to be someone who informs or makes a complaint. In economic crimes, in identity crimes, there are other players than the victim. There are the people who have the information banks, etc. Is there some sort of public education program involved to get the other players to be more forthcoming in complaining about crimes?

As you know, many of the victims of economic crimes are reticent to come forward, because in some cases they don't trust the system. I suppose in some cases they are embarrassed that their credit card was stolen while they were purchasing something on late-night TV, or I don't know what. What public education program is there for these people who may not be as forthcoming?

[Rob Nicholson, Conservative, Niagara Falls, ON]

There were two parts to your question.

With respect to victims, I would refer you to clause 11 of the bill, which makes specific references to the expenses incurred by individuals in trying to re-establish their identity. There are direct provisions now in the Criminal Code to assist those individuals who have been the victims of identity theft.

With respect to victims in general, you'd be aware of my recent announcement that we will be bringing forward in Parliament new legislation to attack white collar crime. One of the provisions that I indicated will be in that legislation is to make the system a little more user friendly for people who are victims, to make application to the court and have their interests heard. We are very concerned about that. As you know, we instituted the first federal ombudsman for victims of crime, which is a big step forward in making sure that victims' rights are heard. I think all of these are improvements.

Concerning public education, believe it or not, Mr. Murphy, I have people coming to me—insurance bureaus, lending institutions, law enforcement agencies—who want to see these laws updated and improved. Again, we were happy to work with them.

We are happy to bring publicity to all of these measures. In fact, you and all members of Parliament can be part of that, in bringing those to people's attention through householders, and so on, and letting them know that there will be greater protection for them in terms of their identify. So we're all in this together.

Certainly this will be a huge improvement.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to the Bloc, with Monsieur Ménard, for five minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

Minister, we are in favour of this legislation. We realize that its time had come. However, when I began to practice law in 1966, I could not have imagined anything like this. However, this generation has witnessed many things. Generally speaking, we support this initiative.

Privacy Commissioner Stoddart was also in favour of Bill C-27 and even went so far as to sing its praises. However, she pointed to the absence of two provisions in this bill. Specifically, you decided not to tackle the scourge of spam and phishing, the latter being the practice engaged in by Internet users such as banks, reputable institutions or government administrations to extract information from the person being contacted.

I can appreciate the difficulty in drafting up anti-spam legislation. However, such a development would be truly welcomed by email users. Why did you not correct this oversight identified by Ms. Stoddart?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, Monsieur Ménard, the bill is very focused on a particular issue that we are trying to identify. My colleague, the Minister of Industry, and others have addressed and focused on spam. I'll pass on your comments to them that you'd like to see more legislation.

With respect to those individuals who are phishing, it would appear to me that this would come within the definition we have here of attempted identity theft. Again, I think this is a step in the right direction.

Generally, when I introduce one piece of legislation, I get asked about introducing something else. You know, this now is about the tenth bill I've had before Parliament. The bill is specific. It responds to a number of agencies and individuals and concerns across this country. That includes a number of meetings I had with law enforcement agencies in Montreal. They were very supportive and very interested in getting something like this passed. They were good enough to explain to me, and in some detail, the challenges they have with respect to this subject. So this will answer those concerns.

Again, with respect to those individuals who are personating, I'm quite confident that they're covered by the Criminal Code in addition to the amendments we're making here.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I see.

The legislation also addresses the problem of identity theft. However, some people resort to using a different name, for a variety of seemingly legitimate reasons. For example, a reporter who wishes to infiltrate an organization in order to investigate a particular matter may use an alias. Some performers also prefer to go by another name. A well-known Quebecker by the name of Alys Robi had a truly remarkable international career during the 1950s. Her real name was in fact Alice Robitaille.

Canada is a country of immigrants and over the years, people have simplified their extremely complex foreign names, at times retaining only the first two syllables.

Will these individuals be affected by the provisions prohibiting the use of a different identity? I think I know the answer to that question, but I would like to hear it from the minister himself, so that the message is clearly conveyed to the public.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for your comments.

I'll ask Ms. Klineberg to address that.

[Joanne Klineberg]

That presents a real problem in dealing with identity theft legislation, but it is one that we were very aware of as we were developing the legislation.

The offence of personation, which this bill will rename as identity fraud, only applies to a person who pretends to be a real person, living or dead. The offence of personation does not apply in the case of a person who uses a purely fictitious name. As well, the offences of identity theft and trafficking in identity information, which could apply to the handling, possession, and manipulation of fictitious identity information, are only complete if there is an intention to use that information to commit another crime.

So in fact I think we can be quite confident that there isn't anything in the Criminal Code, currently or in this bill, that would criminalize people who use a pseudonym as long as they're not committing other crimes at the same time. But in terms of merely using a pseudonym, for instance, as long as it's not a name that refers to a real person, I can't think of what offence that might be.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Norlock.

You have five minutes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you, Mr. Chair.

Thank you, Minister, and your officials for attending here today.

I don't wish to appear mercenary, but the Canadian Council of Better Business Bureaus estimates that ID theft costs Canadian businesses some $2 billion annually. Despite some of the heartache from a personal perspective, the feeling of losing one's identity to some stranger, and all the ramifications in a personal way that go with that, I think we all realize that those costs are eventually passed down to the consumers. So an additional cost of $2 billion to our economic system is passed down to people at the very time when we're least able to absorb that type of loss. Therefore it's no small issue to us all. I'm wondering if you might comment on that.

This legislation contains several offences that prohibit the use of another person's identity, such as fraud and forgery, but it also includes many other aspects. I wonder if you can once again—for us and for the folks at home who are listening to this and are very hopeful that it makes a very expeditious travel through our system—explain the changes this bill proposes, and how section 4 strengthens the Criminal Code, in terms that most of us who perhaps don't have a legal background or legal training can understand.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, thank you, Mr. Norlock. I thanked you before the committee for your participation and membership on this committee.

You talked about the cost. I've spoken about this a number of times and used that figure of $2 billion, which is the estimate that was given to me on the loss as a direct result of identity theft and fraud. What's interesting about that is the potential for this figure to increase exponentially. With the changes in technology and the sophistication of the criminal element that we are opposed to, I've been told that this can increase very quickly. That is why there is a need to update the Criminal Code.

As I've said before this committee, you can't use legislation that was written in another era to deal with many of the problems we have today. Some of them haven't changed. When Monsieur Ménard started to practise law, if you stole somebody's credit card, that was an offence in 1966, and if you manufactured an illegal credit card, it was an offence in 1966. It's everything else that goes with these crimes that is not being captured, and that is what we are trying to do here.

To the individual who is not a lawyer or doesn't spend all their time reading the Criminal Code or analyzing the different sections within it, one of the easiest ways to explain it is that we're not getting the information that's being shipped out of this country. There are people assembling people's information. They're taking that information and shipping it out of the country, and it's not against the law under the present law of Canada. This information is being used for illegal activity because people outside of this country are producing those illegal credit cards outside the country, but the people who are part of the organization aren't being caught.

It's the same thing with auto theft. You're stuck with laws that talk about possession of stolen goods. Well, break into a chop shop. How many people actually possess the stolen goods? If you try to get one person, he says no, it's somebody else. It's very difficult. We have to get all the people who are part of these sophisticated operations, and that's the challenge we have. If we don't pass legislation like this, Canadians can expect that this will increase exponentially, because people are in this type of activity and it will only get worse.

As I told the law enforcement agencies in Montreal, I will do my very best to get this legislation to give you the tools you need to crack down on this kind of activity. We are delivering on a commitment to people who are in the law enforcement agency, and we're delivering to potential victims so they know that the laws are up to date and are there to protect them.

So we are strengthening the Criminal Code and bringing it up to date. Canada will be a better place in which to live when legislation like this gets passed.

[The Chair, Conservative, Ed Fast]

Mr. Minister, you committed to giving us one hour and the one hour is up. We will break for five minutes to allow you to leave. Your officials will remain behind, so we'll have another hour with them.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

[The Chair, Conservative, Ed Fast]

We'll recess for five minutes.

[The Chair, Conservative, Ed Fast]

We'll move back to the opposition side.

Mr. Murphy, you have another five minutes.

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

Thank you.

This is on clause 10, and moving beyond the documents and into identity information and the interplay with PIPEDA. There's a Privacy Commissioner and there's the Personal Information Protection and Electronic Documents Act. They have their own regime, I'll say. They deal with personal information, and I understand that we have defined identity information to be something less than personal information that relates to an identifiable individual.

I have two questions. Will there be an interplay between complaints to the commissioner or complaints based on the taking of personal information and what will be section 402.1 of the code?

Here's why I'm asking. People's information, I'll call it, is taken. If it's used for a fraudulent, deceitful, or false purpose, we understand what that means. That usually means some sort of economic gain. That's usually the way it is. But in the civil realm, most of the complaints at the PIPEDA level are based on invasions of privacy, which may have some sort of civil sanction. And we can get into issues about defamation, people using information for political purposes, even, and that's where I get to proposed section 402.2, where it says “falsehood”. We all know what fraud and deceit means, I think, but this is “falsehood”. Can someone take a name and date of birth, and come into it knowingly...? And that's all you have to do, you just have to know you have it. If you have an e-mail, you have somebody's date of birth and address, and you use it for some purpose, say you use it to show that Mr. LeBlanc doesn't live where he said he lived or someone says they had a title but they don't have a title, whatever, and it's really used for a civil purpose, is that a falsehood? Does that fall under the section?

I mean that in a more general sense. Don't be stuck with my particular example, because we really don't care where Mr. LeBlanc lives or what he does. But we do want to know where the cut is between the civil and the criminal and PIPEDA and sections 402, 403.

[Joanne Klineberg]

That's a very sophisticated question that I'll do my best to answer.

I think the federal and provincial privacy commissioners across the country, as well as privacy advocates, look at identity theft from an invasion-of-privacy perspective. But that's not really the criminal law perspective on the problem.

If you look at proposed section 402.2, it isn't merely having this information and using it in some deceptive way; it's using it in the commission of an offence, a pre-existing, independent, criminal offence that involves some element of deception. So that is in fact where there's a fairly clear demarcation between mere invasion of privacy or a violation on the civil side and where the criminal law can step in.

You referred earlier in your question to the definition of “personal information” under PIPEDA. I believe the definition is “information about an identifiable person”. I think there had been representations at one time that that's what the definition of “identity information” ought to be for Criminal Code purposes as well. But again, if you consider identity theft from the criminal law perspective as opposed to an invasion-of-privacy perspective, it really ought to be focused on the type of information that can identify a person, because it's the identification of a person that leads to various forms of deception and fraud.

PIPEDA, for instance, would cover a person's religious affiliation or their shopping preferences or their marital status. All of that information may be of a private nature, which privacy legislation should protect, but from a criminal law perspective those pieces of information are not useful in perpetrating an identity fraud. Although the definition of “identity information” is open-ended, it's really constrained by the notion of its applying only to information that can identify a person as opposed to information about a person, which I believe also serves to delineate the criminal law sphere from the privacy sphere.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Petit. You have five minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Good day, Ms. Klineberg, Mr. Kilkie.

I would like to start by thanking Serge Ménard for being here. He once served as Quebec's Minister of Justice and Public Security and used his skills to fight organized crime in the province. He is responsible for sending a great many gang members to prison and for ridding our communities of this criminal element. He is to be congratulated on his achievements. He is, in my opinion, a great asset to the justice system, to victims and perhaps to the Conservative Party, in light of his previous positions.

That being said, Ms. Klineberg, I have something I'd like to ask you. Mr. Ménard's question was extremely relevant. People, whether immigrants or refugees, sometime arrive in the country without papers because their country is at war and documents have been destroyed. The realization may dawn after a few years that a person has a different identity, or has taken on his brother's identity and that names no longer correspond. These individuals are granted permanent resident status and all of the social rights that come with living in Canada. We see the expression “other document“.

If a person has no papers, then how do you take matters to the next level? We're going to encounter some serious problems. Canada is a safe haven. Many people opt to seek refuge in Canada. How are you going to administer the legislation? How do you plan to expose identity theft? How do you plan to prove identity theft, given the absence of documents in many cases?

[Joanne Klineberg]

I think the starting point in answering that question is to distinguish two separate offences. In proposed section 56.1, that's the offence in relation to government-issued identity documents. Identity theft doesn't require reliance on a document. That offence can involve mere possession of the information, even if it's not captured in a government-issued document.

If an immigrant comes and doesn't have papers, they still have an identity--an address, a name, a birth date, and other identifiable information such as financial account numbers. If someone obtains any of that information with the intent of using it to commit an offence, even in the absence of there being legitimate government documents, that can still be captured as an offence. But if a person has no documents, then there are no documents in respect of which another person can commit an offence. In other words, you simply can't commit an offence in respect of documents that don't exist. That is for the offence under proposed section 56.1 in relation to government-issued documents.

Whether or not or how that person might obtain government documents would not really be a matter for criminal law. That would be a matter for Citizenship and Immigration authorities, or provincial authorities. But you can't commit an offence in respect of something that doesn't exist. An individual like that would be protected in terms of the misuse of their information, but if there are no documents, proposed section 56.1 wouldn't apply.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Canada operates under both civil law and common law systems. Under Quebec's civil code, certain documents are issued by the provincial government. Other provinces do not operate under a civil code system. For instance, the First Nations of the Northwest Territories proceed differently.

You have used the expression “other document“. However, have you covered all of the possibilities to prevent someone from using a false identity? We've seen in Quebec where persons have obtained death certificates and used them to secure certain rights. Have you covered every possibility?