Justice Committee on Sept. 17th, 2009

[Joanne Klineberg]

I'm sorry, but I didn't hear your question.

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

Have you covered all of the cases that fall under the Civil Code and under common law, and considered first nations that use different codes to identify their members and to issue documents to them?

[Joanne Klineberg]

In developing the list of documents in proposed section 56.1, we got together a fairly large group of people from a variety of different federal departments to try to identify which documents were primarily used for identification purposes. As has already been noted, the Senate legal and constitutional affairs committee added the death certificate, because at the federal level we simply didn't advert to that particular document.

We can't be absolutely positive that we've covered every document. All we can do is bring together enough people, and through the parliamentary process and all the representations that get made before committees, hopefully at the end of the process we'll have the documents that are the most important. On the amendment passed by the Senate to add “or other similar documents”, if it's in any way similar to the documents listed but isn't specifically listed, it should be covered. So that addition will go a long way toward making sure the list is adequate.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Moore for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to the witnesses for being here today and for their testimony. I think it's been quite helpful.

Just so people who are watching can understand, of the listed identity information pieces that are in this legislation, which ones are most commonly used for illegal purposes? When people think of identify theft, sometimes they think of their credit card information or other information being stolen and someone racking up bills on their behalf. But what are some of the most typical scenarios that Canadians are facing right now? What are some of the less typical? What do you see on the horizon that this legislation will capture?

As the minister said, we're trying to catch up with where criminals are and where they're going. I know there is a great concern out there--certainly in my constituency and probably with everyone around this table--about ID theft. When you talk about ID theft, most people have a preconceived notion of what that means. So does this bill address something that goes beyond having people's credit card information stolen?

[Joanne Klineberg]

There are many challenges from a legislative perspective in dealing with identity theft. One of the biggest ones is that, as you mentioned, people already have a preconceived notion of what identity theft means. The various industries that have been involved in the process of developing the legislation also have their own ideas.

The credit card companies tend to like to think of credit card fraud as something different from identity theft. There are existing offences in the Criminal Code that deal with credit card fraud and debit card fraud. This legislation will overlap with that legislation, but there will continue to be specific credit and debit card offences. It's my understanding that credit card fraud and debit card fraud make up the overwhelming majority of identity theft offences.

What would follow after that would be the creation of accounts and account takeovers. That could be a cellphone account, or even something like a cable television account or utilities account, and involve taking over someone's financial account or creating new accounts for utilities in another person's name so that the bills go to them but you're the one receiving the benefit. Those make up the largest percentage of identity theft types of issues.

There's a much smaller segment of offences, which Mr. Comartin adverted to, dealing with title fraud, real estate fraud, mortgage fraud. It represents a much smaller segment of the total of identity frauds, but obviously in cases like that the damage can be much more extreme.

So it runs the gamut. Unfortunately, I don't have with me the breakdown in statistics, but certainly credit card and debit card fraud do account for the overwhelming majority of what identity theft is. These offences will give the police additional offences that they can charge in relation to those crimes. Those crimes are adequately covered now. They would be the only offences for which possession of the information, even before it's been used, is currently criminalized. This will add to that and give the police additional charges that they can lay.

What's on the horizon? I don't know. What I can tell you, though, from the experiences and encounters I've had with people from other countries in discussing this issue, in particular in Asia, is that one of the most dominant forms of identity fraud in Asia is actually with respect to video game accounts. The video game industry there is much more massive than it is here. A larger percentage of the population plays these games. They input all kinds of money into their online accounts for certain video games. If people can obtain their identities, they can log onto their accounts and spend down all of the money they have in there.

I don't know whether that will become a major phenomenon in Canada, but in other parts of the world you can start to see--depending on the culture and society, and on what sorts of activities people participate in--that there is scope for identity theft, regardless of what those are.

So anyone could guess as to what will be coming down the line.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Moore, is there anyone else on the government side who wants to ask a question before we move to the opposition?

[Rob Moore, Conservative, Fundy Royal, NB]

I don't think so.

[The Chair, Conservative, Ed Fast]

All right. We'll move back to....

Mr. Woodworth, you're free to ask some questions.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, since I'm being extended such great courtesy, perhaps I'll take advantage of it, if that's all right.

[The Chair, Conservative, Ed Fast]

You have five minutes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you. I may or may not take all of it, in which case I'll defer to other members.

First of all, I was glad to hear mention earlier of the estimate of $2 billion that is lost as a result of identity theft. I know this is not the first time the government has attempted to introduce measures of this nature. I was very glad to hear today the degree of support coming from the opposition side. I can only hope that the support that was expressed this morning will be followed up in the House and that this bill will be passed at the earliest opportunity, without any further delay. I think this bill has some relevance to those who are most vulnerable in our society, particularly seniors and others who are sometimes victimized by identity theft offences.

I'd like to, if I may, focus on a specific clause just for a moment, which is clause 9. I suppose it's a picky little point, but I'd like to understand it. If I'm correct, it appears to deal with the offence of forgery instruments and to amend section 369 by including a section 368.1. It appears one of the major purposes of that is to take a straight indictable offence and hybridize it. This is not the first time that I have seen offences being moved from straight indictable to hybridizing, and my thinking on it is that perhaps there's some recognition that it's easier to prosecute if the prosecution, the crown attorneys, have the opportunity to deal with an offence otherwise than by indictable procedure.

So I would be grateful for comment from the department about whether or not this is a recognized principle. Are we moving to recognize that perhaps hybridizing offences makes them a little easier to prosecute and that this is a good thing? That's where I'll start. Thank you.

[Joanne Klineberg]

I wouldn't say that there's a recognized principle that proceeding by way of summary conviction.... It certainly doesn't make it easier to prove the offence, but if you proceed by indictment, it's a different set of procedures that apply, including the right to a jury trial, and it may go to a different level of court. If you proceed on summary conviction, the procedure can be quicker. Proving the offence would remain exactly the same, but the procedure might be simplified, and that's made available.

What we do here repeatedly from prosecution authorities across the country is that if you get a less serious case where you don't want to be seeking the highest possible penalty—maybe you're going to be seeking a penalty in the lower range—you go with the simpler procedure that avoids the potential for a jury trial and other procedural ramifications. For the less serious offences, the crowns do like the option of proceeding by way of summary conviction because it makes the trial process simpler, but it certainly doesn't make proving the case any simpler.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If I said proving, I misspoke. I did mean to speak about easier procedure.

[Joanne Klineberg]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I suppose in the back of my mind I really meant easier convictions. I thank you for that.

The other thing I wondered about is whether or not when the department introduces a change of this nature there's any attempt to track how it is applied. I know that every province has its own set of provincial prosecutorial people, and I don't know how much of a national database, if any, there is regarding prosecutions, convictions, and sentences. However, I wonder, especially since this is, as one of our colleagues across the ways said, a new piece of legislation--really new--if there's going to be any attempt to track how it's implemented and what the results might be in terms of convictions and sentences.

[Marke Kilkie]

I think your second question is focused on the new offence as opposed to the hybridization aspect, but I will add just on the hybridization point that there was a larger effort to hybridize offences that began in the mid 1990s, around 1997, working with the provinces and the territories in terms of them being on side with the concept as described by Joanne, the benefits on both sides.

In terms of tracking the specifics of a new offence with the provinces, I won't say that the data is always as robust as we'd like it to be, but there is the Canadian Centre for Justice Statistics that does provide us with our main source of data on tracking new developments in the code and prosecutions as they go forward, and that's run by Statistics Canada.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right. Thank you very much. I appreciate that.

[The Chair, Conservative, Ed Fast]

I believe the Liberal members are passing on their opportunity to question, so we'll move to Mr. Lemay, with one more question from Mr. Comartin, and then we'll move in camera.

Mr. Ménard.

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

I just have one question. I believe the teenage practice of using someone else's birth certificate is covered under subsection 403(1)(a). Is that correct?

[Joanne Klineberg]

Yes.

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

You thought about that.

Let's consider another example. Suppose I lost my driver's licence and borrowed the licence of a family member. Obviously, this would be an indictable offence if the intent was to avoid arrest or prosecution. However, if I borrowed the licence for identification purposes and committed no crime, would this be considered an offence under section 403?

[Joanne Klineberg]

I think it's fair to say that the offence of personation is fairly broad in scope. Some of the conduct you've described may technically fall within the offence of personation. What we could say in response to that is simply that this offence is one that tends to be charged quite infrequently. We would rely on the excellent discretion of the police across the country and prosecution authorities to consider the advantage for which someone might have pretended to be someone else. If it is merely a matter of, “I forgot my driver's licence and just in case I was stopped I wanted to have a driver's licence with me,” we would not expect to see a prosecution.

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

I didn't say “suppose I forgot“.Perhaps I was misinterpreted. When I said “suppose I lost my driver's licence“, I meant that suppose I lost it further to a court ruling, for instance.

[Joanne Klineberg]

Ah.