Evidence of meeting #33 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Having lost my driver's licence, I decide to use another person's licence. If I use that licence, not to shirk a responsibility, avoid a fine or some such thing, but simply for identification purposes, does section 403 apply?
Counsel, Criminal Law Policy Section, Department of Justice
It would be a decision for the police and the prosecutor to make, whether they want to—
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Your answer implies that if they use their discretion to initiate prosecution, then indeed this is deemed to be an offence under section 403. However, I do not see it that way, either in subsection (a), (b), (c) or (d).
Counsel, Criminal Law Policy Section, Department of Justice
Would they not have had the intent of gaining an advantage?
Counsel, Criminal Law Policy Section, Department of Justice
The right to drive a vehicle, a right that they have lost.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Yes, but in this instance, I have not committed an offence, and the police is merely conducting a roadside check. I have not had anything to drink.
Mind you, I realize that I have done something illegal.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
It's not something that I would do. Of course, I wouldn't lose my licence either.
Counsel, Criminal Law Policy Section, Department of Justice
This is why I do policy and I'm not a prosecutor. It would be an argument that a prosecutor might wish to make, or they might not consider it sufficiently injurious to the public to proceed with a criminal prosecution. But the offence is broadly and flexibly drafted to cover quite a range of conduct.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I have a quick question.
Perhaps I misunderstood Mr. Murphy's comments. I'm not sure that my interpretation of subsection 402.2(2) in clause 10 is correct. It notes the following about the trafficking of identity information:
(2) Everyone commits an offence who transmits, makes available, distributes, sells or offers for sale another person’s identity information, or has it in their possession for any of those purposes, knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.
In my opinion, this goes much further than the definition of drug trafficking, for example. I simply want to know the reason for including this provision.
Counsel, Criminal Law Policy Section, Department of Justice
Usually with the notion of trafficking, for instance in relation to drugs, you traffic drugs. Another person can use them. If I traffic information, it's the person I traffic to who has the intention to commit a crime.
There's a sequence of steps that may be different from the case of trafficking in firearms or trafficking in a physical object. Once I've trafficked in contraband, the object itself is illegal to posses. If I traffic in drugs or firearms to another person, they now possess something, and it's a crime to possess it. Here we're talking about information, which is not a crime merely to possess. If I give you the information, I still need to have a belief or a suspicion that you are going to use it in a criminal act.
Conservative
The Chair Conservative Ed Fast
Thank you.
Mr. Comartin, you'll have the last word. You have five minutes.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
I thought I understood when you answered Mr. Ménard, but let me give you this scenario. You have a journalist who's taken on a false identity, just for the purpose of getting the story. If the false identity is not a real person, there is no offence?
Counsel, Criminal Law Policy Section, Department of Justice
This is going to sound terrible, but there is no offence unless there is an offence. For instance, if he forges documents in support of his identity, then he may be committing forgery. Merely walking into a room and claiming to be a person you're not, if it's a fictitious person, and then proceeding to have a conversation based on a fictitious identity, is not a crime.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
If they walk into that room and say, “I'm so-and-so's brother”, as a way of ingratiating them into the group or giving themselves credibility, and that brother really does exist, the siblings exist, is that a crime?
Counsel, Criminal Law Policy Section, Department of Justice
If that brother really does exist, possibly yes, I would say. There's not a tremendous amount of judicial interpretation of the offence of personation, because it has not been charged very often. We do know that the person personated must be a real person, living or dead. We do know that there must be a real intention to pretend to be a specific person. If I invent a name that happens to correspond to a real person, I'm not committing personation. If I know something about the brother, and I know the people I'm talking to know the brother, and I say “I'm this guy who you've heard all about”, I would say I'm impersonating the brother.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
In the preparation of the bill was there discussion with journalists or journalist associations?
Counsel, Criminal Law Policy Section, Department of Justice
With journalists, no. But many members of this committee may recall a private members bill, C-299, from a few years ago. It dealt with identity theft, but it was tabled prior to Bill C-27. What that bill did was it said anyone who pretends to be someone else essentially commits a criminal offence. We narrowed that, because what was missing from that idea was that you have to be doing it for a criminal purpose. Lots of people pretend to be other people or engage in deception, such as journalists, for a whole range of purposes.
We did not consult with journalist associations. We were certainly aware of the practice of going undercover in order to gather information, but that's not for a criminal purpose. In developing the identity theft and trafficking offences here we absolutely were mindful of that situation, even though we didn't have direct consultations with journalists.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Okay.
In terms of Juristat, did you look at how many charges historically we've had under sections 386 and 387?
September 17th, 2009 / 10:35 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
No, in fact I didn't. The easiest thing we do sometimes is open up our annotated Criminal Code, and we don't see any annotations there, which is a good indication that it's not an offence that's charged frequently.
What I do know is that where you do see title fraud, real estate fraud, and mortgage fraud prosecuted, you see them prosecuted as fraud with forgery and associated general offences.
So no, I can't say I've assured myself that there have been no uses of that section, but I would bet you might have a difficult time finding prosecutors or police who were even aware that it was there.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
And the way Juristat gathers data on fraud generally, it wouldn't show whether it's credit card fraud or commercial fraud or real estate fraud.
Counsel, Criminal Law Policy Section, Department of Justice
The difficulty with general offences is that when you gather the data, the data don't distinguish between different types of fraud. But one of the difficulties with very specific offences—which we frequently receive proposals for—is that they don't get prosecuted because they contain elements that the general offences don't. Therefore, prosecutors just don't like to use them.
So it's a constant challenge between addressing issues with specificity and being able to collect the data, but at the same time crafting offences that are user-friendly.