Justice Committee on Sept. 17th, 2009

[The Chair, Conservative, Ed Fast]

Good morning, everybody.

I call the meeting to order. This is meeting 33 of the Standing Committee on Justice and Human Rights. Today is Thursday, September 17, 2009. As a note to all of you, this meeting is being televised.

You have before you the agenda for today. We'll leave 20 minutes at the end of today's meeting to go in camera to plan future business and also to review the report of the steering subcommittee, which was held on Tuesday.

Once again I remind all of you to turn off your cellphones and BlackBerrys, or set them to vibrate. If you're going to take phone calls, please take them outside of the room as a courtesy to our witnesses.

Now, going back to our agenda, by order of reference we're considering Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct). To help with our review of this bill, we have with us again our Minister of Justice and Attorney General for Canada, the Honourable Rob Nicholson. Welcome here, Minister.

Supporting the minister we have Joanne Klineberg and Marke Kilkie. Both are counsel with the criminal law policy section. Welcome to you as well.

Minister, you know the process. You have ten minutes to present, and then we'll open the floor to questions.

Thank you.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Chair and committee members.

I'm pleased to be here today to talk about Bill S-4, which addresses concerns about identity-related crimes. Bill S-4 has been passed by the Senate, with some changes that I will bring to your attention. I urge the committee members to give this bill serious study and consideration, but I would also hope that the members would complete their study in an expeditious manner and return the bill to the House of Commons without amendment so it can be passed into law as quickly as possible. Canada needs this law.

Criminals have always concealed their true identities and assumed false ones. What has changed in recent decades is their increasing reliance on technology. Technology has brought us greater convenience and speed of communications and commerce, but criminals also enjoy new opportunities to obtain greater illicit benefits at little risk. The government believes these new threats can and must be addressed with Criminal Code amendments.

In Canada the Criminal Code has always had some offences that target the actual misuse of identity. The most directly applicable offence is that of personation, a serious offence punishable by up to 10 years in prison. If you impersonate a real person, living or dead, with an intent to gain an advantage of some kind or to cause anyone a disadvantage, this amounts to personation. There are numerous secondary offences, such as forgery of documents, including identity documents; and fraud; misuse of credit cards; and other offences in order to protect specific forms of identification, such as a Canadian passport.

Bill S-4 makes some reforms to modernize and update these offences, but its main purpose is the creation of new offences that directly target the early stages of identification and identity information misuse and abuse. The new measures are necessary to close gaps created by new technologies and new criminal operations. While taking physical documents may amount to the crime of theft, simply copying or having information, even if that is done for the purpose of later using that information to commit a crime, is not addressed by traditional property offences or any other offence, unless the Criminal Code specifically addresses it. It is the unique nature of information that poses this problem, information that is not considered property by the criminal law.

The benefit of the new offences is they can be applied before offenders have a chance to actually misuse personal information to the detriment—financial or otherwise—of others. They enable law enforcement to become engaged at much earlier stages of criminal schemes. This will result in a reduction of the more serious kinds of victimization that result when identities are fraudulently abused.

Let me turn now to what I believe are the key amendments in this package. I will also point out certain amendments passed by the Senate's Standing Committee on Legal and Constitutional Affairs, later approved by the Senate as a whole. I believe these changes improve the bill.

The first key element would form a new section 56.1 and criminalize the procurement, possession, transfer, and sale or offering for sale of specified government-issued identity documents without a lawful excuse. At present, simply possessing or trafficking in other people's identity documents is not a crime. We believe it should be—subject to appropriate exceptions, of course. To this end, the bill allows for several specific lawful excuses, such as handling documents with the consent of the person to whom they belong, or carrying out one's job function.

The offence was drafted with a specific and closed list of government documents covered by the offence, such as a social insurance number card and a driver's licence. The Senate was concerned that a closed list would mean that further documents created by the federal or provincial governments, which could be used for identification purposes, would not be covered. So they opened the list slightly, by allowing for inclusion of any document that is similar to the ones used. This was a small but important improvement, in my opinion.

The second key amendment is the creation of a new offence of identity theft and a companion offence of trafficking in identity information. The proposed new identify theft offence deals primarily with obtaining or possessing identity information in circumstances that show intent to commit one of a series of other related offences, such as fraud or personation.

A related offence will be established to cover trafficking in such information, knowing or being reckless as to whether it will be used for one of those same offences. Both offences will be informed by a broad definition of identity information, which covers all the types of information that can be used to identify a person.

Based on the definition, these offences are directed at the mishandling of information. It does not matter whether the information is contained in an official identification document or whether it is merely copied or stored in some other form.

There are also related amendments to the offence of personation. The offence of personation will now be renamed as “identity fraud”, so that the Criminal Code will present a coherent picture of the various stages of identity crime. The offence of identity theft will cover the early stages in gathering and handling of the information; in the middle will be the offence of trafficking in identity information; and at the far end of the spectrum, the offence of identity fraud will cover the actual deceptive use of the information.

Bill S-4 also clarifies and extends certain existing offences in the Criminal Code. The bill will improve the law in relation to credit and debit card offences, misconduct in relation to the mail, and forgery offences.

I would take the opportunity to point out one more amendment made by the Senate legal and constitutional affairs committee in relation to an amendment to the credit and debit card offences.

One amendment in the bill added the notion of personal identification number, or, as we usually refer to it, the PIN, to the offence of unlawfully possessing or using credit card data. The Senate expanded the concept to personal authentification information, the idea being that, with the advances in technology, there may one day be forms of authentification associated with credit and debit cards beyond just a PIN—for instance, a fingerprint. The change made by the Senate ensures that developments in technology will be captured by the law. Once again, I consider this change to be an improvement.

The government realizes that officials from legitimate investigative agencies often must conceal their true identities in the course of undercover investigations. To ensure that law enforcement can continue to work under cover to keep Canadians safe from crime, Bill S-4 excludes law enforcement from certain offences in relation to forged documents for otherwise lawful conduct undertaken in the course of their duties or employment. Agencies that produce identity documents are also exempted if they make false identity documents for use in covert operations in good faith and at the request of a government agency.

I'd like to be clear that these measures do not exempt the police from identity theft or personation or fraud offences. They only permit the police to make, have, and use false documents that portray a fictitious identity—just so we're clear.

This concludes my summary and what I believe are the key elements of this package. I and the officials who were good enough to be here with me today would be pleased to respond to any questions you might have.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Minister.

We'll move to questions, but before we do, I want to welcome two new members to our committee. First of all, representing the Bloc Québécois, we have Serge Ménard, who is replacing his colleague Réal Ménard—welcome to you.

We also have, representing the Conservative government, Stephen Woodworth, who is replacing Brian Storseth—so welcome to you as well.

We'll move on to the first questioner.

Mr. Murphy, you have seven minutes.

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

Thank you, Mr. Chair.

Thank you, Mr. Minister. I first want to compliment you and the Department of Justice on this legislation.

With the compliment comes a comment, of course. I've been here almost four years, and I can say that this is new legislation. It's not just tacking on a mandatory minimum to an existing law as a band-aid to make it seem as if society is safer. This is real, important work, as you know. Bill C-27 was almost up the ladder when the plug was pulled on Parliament.

So we've been through this before, and what I think is quite interesting and gratifying is to see that you've given praise to the Senate work. I hope it's not just because the Conservatives are close to getting a majority in the Senate that you have a new thought on the good work of the Senate, but--

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's getting better every day over there.

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

Your words.

I believe the amendments improve the bill. To get right to the point of one of those amendments, which I think is really quite interesting, I can understand in reading the Senate debates that the senators in the committee very much brought to bear the rub of this issue, which was to expand the list of documents. I think everybody would have been happy with the documents that were identified. There was a concern that it wasn't broad enough, yet the competing view was about not being specific enough and leaving it open, as it does in clause 1.

I think the wording is “or any similar document”.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

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

Are we concerned that by leaving that open, that by not specifically identifying the goods being trafficked in or used for fraud, or merely possessing, we are leaving the section too open, and therefore open to challenge?

Take the analogy of drugs, since we're talking about possession and trafficking here. We are very specific in the controlled narcotics and substances act, and very careful--very careful--to specify by schedule the items to be possessed or trafficked that are attached to crime.

Whereas we're not dealing with PIPEDA, which is an administrative penalty governed by its own privacy commissioner, but we're dealing with the Criminal Code, can you or your officials assure us--and perhaps, down the road, a judge or a defence lawyer or prosecutor--that it isn't too broad, that it will stand up in a court by being left open like that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for the question.

I liked the amendment when it was brought to my attention, and for the following reason. We constantly have a challenge with the Criminal Code to make sure it's up to date and stays in touch with the changes in technology. I have other legislation before Parliament that updates a number of provisions within the Criminal Code. Why? Because the present provisions are stuck in another era. I mean, there are references to telegraphs and telegrams, and a recognition within the Criminal Code that most electronic communication is done by telephone. These references are obviously out of date. When was the last time anybody received a telegram? Does anybody here remember the last time they got one? Again, we have to constantly update these.

Now, there were a couple of amendments. You mentioned the one with respect to the list of government documents. There is a provision for a review after five years. Again, that wasn't in the original bill that I tabled in Parliament, but it provides an opportunity to make sure that technology doesn't outpace us on these.

When I saw the amendment, it said “or any similar document”, which I think has to be read in conjunction with the words around it, including “issued or purported to be issued by a department or agency of the federal government or of a provincial government”, and “issued or purported to be issued by a foreign government”.

To me, that is the saving provision. If we come up with a similar document....

I mean, I'm in a border community, as you know. We have seen a number of changes in the kinds of government-issued documents. The latest one we have now is NEXUS, but that's only a few years old. Again, we want to make sure that all of these get covered.

So I had a look at it, and it seemed to me that it was reasonable. As I say, following those words, you have the specific description that these would be governments, with the different levels of government listed from which these documents would be coming. I think it's good. It keeps it tight, but not too tight, so that we're not overtaken by changes in either government policy or technology.

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

I'm also gratified to see that because there are gradations in the offence--as in, possession, trafficking, and then the third one, leading to actual fraud--the hybrid vehicle, I guess, of summary or indictable conviction is used. On sentencing it seems, à la most of the code, fairly discretionary.

I am very drawn to the comments you made at the Canadian Bar Association this summer, Mr. Minister, where you again, rightfully and admirably, put it out that we have one of the best judiciaries in the world, the Canadian judiciary, and its independence is not under attack.

Is this a sign, in that there are no mandatory minimums mentioned here, that in this legislation the government is very happy to have discretion remain with the trial judge?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We always give parameters, whether they be minimum or maximum sentences, and you'll see provisions here, within this piece of legislation, where we indicate that there be a maximum sentence of ten years or five years, or, as you indicated, there are hybrid offences, so they could be punishable on summary conviction. Again, it's our constitutional responsibility to give those guidelines.

I told you the example of a bill I was working on in the early 1990s. One of my colleagues came to me and asked why I was putting a five-year maximum on that particular offence and why didn't I make it ten years and let the judges decide. We think five years is an appropriate maximum. We give those guidelines to the judges. We want to make sure it fits in line with other provisions of the Criminal Code. We don't want it to get out of whack in terms of other provisions, so, yes, we do provide those maximum guidelines. Certainly I don't apologize for that. Those are a responsibility. On occasion we give minimum sentence guidance to the courts. We take each one on a case-by-case basis and come up with an appropriate penalty scheme, and I think this is an appropriate penalty scheme.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Lemay for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Minister, for joining us today.

I have examined the bill carefully. It is a continuation of the former Bill C-27 that the committee had begun to review, but which, may I point out, died on the Order Paper in 2008. Since this bill does not provide for minimum sentences, you will likely get the support of the Bloc Québécois and things should move forward even more quickly. I'm sure you are happy to hear that.

I am concerned about two things, however. First of all, the French version of clause 56.1 notes the following: “[...] délivré ou paraissant délivré par un ministère ou un organisme public [...]”. The word “purported“ is used in the English version. I'm not sure how departmental officials interpreted this provision, but it is clearer in English. The definition provided in the French version appears, in my opinion, to be quite broad. We have a photocopy of a photocopy that has been photocopied. I'm not sure what you mean by this. Could you tell me why you used this particular word?

[Rob Nicholson, Conservative, Niagara Falls, ON]

When I used the word “purported”, Monsieur Lemay, that was, of course, the word that is used in the bill itself. Under the French version it is

“[...] ou de tout autre document semblable délivré our paraissant délivré [...]”.

They draft these bills separately, as is appropriate. We draft them in English and en français aussi. Of course we want them to match up and say the same things.

I perhaps will call on my colleagues if they have any additional information that we can give.

[Joanne Klineberg, Counsel, Criminal Law Policy Section, Department of Justice]

One of the concerns that we heard a number of times when we were consulting with police and prosecution authorities was they were concerned about cases where the documents were forgeries. For instance, if I have a forged birth certificate in someone else's name, or 17 forged birth certificates and forged driver's licences, I'm still able to use those to deceive others about my identity, but they are not authentic documents. We wanted to make sure that we captured authentic documents that actually were issued, but also those that purport to be issued by.... That's the purpose.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

It is clear, Minister, that this bill takes us into the 21st century. I quite agree that references to telegrams and telexes should be deleted. I think we will need to update the Criminal Code. When we studied Bill C-27, several judges agreed that this bill was timely and said they hoped it would be passed quickly. We will try to do that.

I would like to talk about identity theft. The year 2010 will soon be upon us. As you know, the Olympic Games will be held in Vancouver in 2010. We live in a highly inter-connected world. Has draft legislation of this nature been discussed with US authorities with whom we have close ties, or perhaps with the Europeans, with Interpol? Have some preparations already been made? Today, someone's credit card or passport can be stolen in France or in Great Britain and used anywhere in the world. Is the global community prepared for this type of legislation?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've made an excellent point, Monsieur Lemay, particularly with your comments about bringing our criminal law into the 21st century. When I introduced the original bill, Bill C-27, in Montreal in the previous Parliament, I was asked by a reporter if this was my attempt to get ahead of the bad guys. I said, “Look, I just want to catch up with the bad guys.” This is what we want to do, because the technology is changing so quickly.

It's interesting that you would mention the Americans and the Europeans, because I have been at a number of G-8 justice ministers meetings that include a number of European countries, including France, Germany, and the United States, and this is precisely the area that I raised with them. I said that the extent that we could coordinate and update our laws so they are similar to each other would facilitate everything from the exchange of information to the cooperation between law enforcement agencies, even when it comes to questions such as extradition. As you know, under the Extradition Act we do not extradite somebody to another country unless there are similar types of laws or offences there.

So that was the message that I had to my colleagues, that this is becoming a huge problem in Canada and the United States, and we do work very closely with American authorities. And I raised this with my European counterparts, so work is being done on this. Interpol spoke to the conference on both occasions and they made the very same point, that this is where the future is taking us and we all have to work together.

[The Chair, Conservative, Ed Fast]

Make it just a short question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Has this matter been raised with Central or South American countries, for example, with Jamaica and Barbados that are popular holiday destinations?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I have. I've been at a meeting of the Organization of American States. As well, I was recently at a Commonwealth conference of justice ministers and I made the point that to the extent that Canada can help these countries in the drafting of their legislation, we would be very pleased to do this. Through the Department of Justice we have supported a number of conferences and meetings within the Caribbean community with the express purpose of trying to assist in the development of their laws.

The point I made to a number of my colleagues is that we don't all have to start from scratch on these things. We don't all have to reinvent the wheel. To the extent that we share legislation and we share these ideas, it helps all of us. And we certainly do that. We look at what other countries are doing in this area, and the department looks very carefully at that.

But you're quite correct. We recognize the responsibility we have and the benefit we get. If other countries have laws similar to our own, it's helpful, because in a sense we're all in this together; we're all trying to meet this challenge.

Thank you for that question.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move now to Mr. Comartin for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Minister, and to your officials for being here.

If I can just pursue the line of questioning of Mr. Lemay, it's my understanding that this legislation, Bill S-4, will bring us generally in line with where England and Australia are. I don't know about New Zealand. Am I right on that, that they already have legislation that covers these points?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Go ahead Joanne.

[Joanne Klineberg]

The last time I looked—and unfortunately I didn't have the opportunity to bring myself up to date immediately in advance of this meeting, but I would have done so prior to going to the Senate committee—there are a small number of states in Australia that have legislation that's very similar to this. In the United Kingdom, they have recently enacted identity card legislation, which does have similar offences in relation to identity documents. With respect to the new section 56.1 that we're proposing, they have very similar legislation. But it's my understanding that the United Kingdom does not actually have any offences with respect to the acquisition and handling of information that's not recorded in a document. This legislation would actually go farther than where the United Kingdom is, but it is quite consistent with the few--two or three, maybe four--states in Australia that have already enacted legislation.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Similarly, I understand that in the United States, where their criminal law goes state by state, a number of the states have moved along in this direction but others have not. Is that true?