Justice Committee on Sept. 17th, 2009

[Joanne Klineberg]

I would be quite confident in saying that all 50 states have identity theft legislation. They're remarkably different from each other in a number of ways. You might see up to a dozen different patterns that are repeated throughout the 50 states, so it's not “one size fits all”. There's quite a bit of variation, but for the most part, I would say that all 50 states do have something that addresses misconduct with respect to identity information in one form or another.

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

Mr. Minister, in terms of the issue of extradition and crossing borders to get at what a good deal of this is, which is international trafficking, especially in documents—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

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

—are we making any progress there?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think we are. This is one piece of legislation, but part of what we're doing is trying to basically catch up with what's happening. It's very frustrating to have law enforcement agencies tell me that this kind of information is getting moved, moving out of the country, but it's not captured by anything. Again, this will be, in my opinion, a big help towards that, to the extent that we can't standardize our laws with other jurisdictions that have a concern on this but are farther ahead.

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

With regard to the provision in proposed section 368.2, providing defence cover for public officials, I must admit, I pulled the code from my researcher to take a look at section 25. I would have thought that this section really is redundant. Isn't 25 sufficient to cover that type of conduct by a public officer?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a good point, Mr. Comartin. Again, we did want to make it specific so that it was specifically related to the use of documentation. We wanted to make that absolutely clear, but I'll ask Marke Kilkie if he has anything to add on that.

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

Before we go to that, I wondered if the reason you put it in was that in fact it's extending additional cover for police that's not in section 25, and I didn't see where it was. That's really what I'm concerned about.

[Marke Kilkie, Counsel, Criminal Law Policy Section, Department of Justice]

It's not intended to provide additional cover. It's a different approach. I think you're referring to section 25.1. The scheme, the “law enforcement justification”, as we call it in 25.1 to 25.4, is designed to provide a justification for offences that are committed by the police in the course of their duties. It's not, as you can see by looking at it, a closed-ended scheme. It doesn't list offences; it's a justification, so it's open to challenge, and it requires a number of safeguards to be in place in terms of designation of officers. Key to that as well is that each time an offence is committed, the officer needs to weigh the proportionality, whereas what we've created in this bill is an exemption.

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

I'm sorry for interrupting, but I want to get onto another point before my time is up.

If they conduct themselves under 368.2, they would not be required to report that?

[Marke Kilkie]

Precisely. It's akin to the way we exempt the police from the carriage of firearms, which is different from citizens. Section 4 of the Controlled Drugs and Substances Act exempts the police from mere possession of controlled substances, while we have a similar scheme under the CDSA police enforcement regulations to 25.1 for other activities such as trafficking offences committed as though the offence is being committed, as opposed to incidental to carrying out their duties, which is how we would view the use of these documents—as a tool in their activities as opposed to an offence committed vis-à-vis a target.

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

I guess the question is why they would not have to report. I understand the exemption we've given them with regard to carrying firearms. That's just practical and logical, but I'm not so sure that's true about this type of conduct.

[Marke Kilkie]

What we've heard from the police is that this type of conduct is routine and it's part of maintaining the undercover work that's done every day across the country on a routine basis.

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

So if they were reporting, they would be having to report a lot.

[Marke Kilkie]

A lot. It would be extremely cumbersome. This is a tool in a tool box, much like the firearms, and it also raises security concerns in terms of that reporting.

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

Do I still have time?

I've heard concerns from the title insurance people in Ontario that sections 386 and 387 need to be addressed. I think the bar association has expressed this, that amendments to those would have strengthened the fight against fraud in real estate transactions specifically, and I think to a lesser degree in some other commercial transactions.

Is there some reason we didn't address those in this bill?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you. I'm going to ask Joanne Klineberg to address that for you.

[Joanne Klineberg]

Well, to begin with, these issues didn't actually arise early on in our consultations and discussions about where we should go for identity theft. More importantly, they did arise at a later date after we were well on our way with the package of amendments you see in front of you.

I suppose the main reason we didn't focus too much on these is because it's our understanding that these offences are not actually charged. Title fraud, mortgage fraud--they're all charged as fraud. So there are quite a number of very distinct, specialized offences in the Criminal Code that prohibit subsets of larger, more generically defined offences.

Industry associations typically zone in on those offences, the specific ones that apply to their activities, and say they'd like to see this modernized, they'd like to see this address their particular issues. But what we hear over and over again from law enforcement as well as the prosecutors is that they really don't pay any attention to those offences; they always charge under the more general offences, because those general offences are easier to prove. Proving fraud is actually easier than proving title fraud, because you don't have to prove the extra elements that are specific to title fraud. So from a law enforcement perspective, the focus is always on the more general offences, which is where we tend to devote most of our attention.

[The Chair, Conservative, Ed Fast]

All right. Thank you.

We'll move to the government side. Mr. Rathgeber, you have seven minutes.

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

Thank you, Mr. Chair.

Thank you, Mr. Minister and your officials, for your attendance here this morning. Once again, thank you, Minister, for promoting your very aggressive safe street and safe community agenda.

We've dealt with a number of pieces of legislation in this committee--Bill C-14 with respect to organized crime and Bill C-15 with respect to mandatory sentences for those who traffic in narcotics. Now we're dealing with identity theft, a bill that originated in the Senate and is now before the House of Commons justice committee.

With respect to your overall anti-organized crime agenda, we've certainly heard anecdotally and otherwise that identity theft is the crime of the 21st century. You indicated in your comments that often law enforcement has a difficult time keeping up to advances in organized crime, with technology and high-tech devices, the Internet, and so on.

Mr. Minister, can you tell us specifically how Bill S-4 deals with the government's overall strategy and its motivation to combat criminal activity and organized crime?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it takes direct aim at criminal activity in this country, Mr. Rathgeber. And again, thank you for your participation with this committee. It's been very valuable and much appreciated.

That being said, it's not just difficult for the police to control this activity, but they have pointed out to me on a number of occasions that they don't have the tools in many cases to do this. For instance, the provisions here with respect to the compilation or assembly of information that is immediately shipped outside this country is just not covered yet. It's not a question of police resources or police desire to crack down on this activity; this activity is just not caught.

They tell me the same thing, quite frankly, with respect to auto theft. You've had a look at that bill, I'm sure. The laws in this country are out of date in these areas. And again, that bill plus Bill C-15, which is now before the Senate and which I'd like to see get passed very quickly, is directed against organized crime. They are whom we're dealing with, the people who bring drugs into this country, the people involved with chop shops, the people involved with moving your identity outside of this country for illegal purposes. This is organized crime. These are the people whom we're talking about and we should be very, very clear about this, and we have to take direct aim at these individuals and send them the message that the Criminal Code in this country and law enforcement agencies are going to be able to respond to this kind of activity.

This is the mission we are on, to update the Criminal Code to make sure we stay on top of the technological changes that are assisting organized crime in this country and go after the kind of activity these criminals are involved with. They should not have the benefit of laws that were written in 1892—and I shouldn't even say written in 1892, but compiled in 1892, and some of these weren't new then. Having laws from the 19th century dealing with crimes in the 21st century is just not going to work, so this is part of an overall strategy that you, quite correctly, have directed us to go after organized crime with in this country and to send them the right message that this kind of activity will not be tolerated.

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

Thank you for that.

At some point, we're going to be asked to do a clause-by-clause examination of this bill. I wasn't part of the 39th Parliament, but I understand that Bill S-4 in its original form is substantially the same as Bill C-27. The Senate made some amendments to Bill S-4.

In your view, Minister, are the amendments appropriate? Did they strengthen the bill?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think they are reasonable.

They expanded the identification of a PIN, a personal identification number. They put in different wording, “personal authentication information”. I think that's an improvement because the PINs might change, the technology might change. We've captured that in answer to Mr. Murphy. We also talked about the use of a “similar” government document, and that wording was added. I thought these were improvements.

In addition, the other major amendment made was that they wanted to review the act after five years, a review that could focus on other technological changes that we might see. That could be very helpful as well.

So, yes, I think these are reasonable. Again, I'd like to see this committee and the House pass this as quickly as possible.

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

On that point, with the prospect of dissolution and an untimely and, in my view, unnecessary fall election, what advice do you have to this committee to get Bill S-4 through committee and the House, and the other very important bills, too, before we're thrust into an unnecessary election?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Rathgeber, we all have an obligation to do what's in the best interest of this country and to protect Canadians to the greatest extent possible. I'm absolutely convinced, and I believe with every part of my body, that these pieces of legislation will better protect Canadians. If the Senate will pass that drug bill, this country will be better protected against drug dealers and traffickers. I believe that in trying to protect ourselves against organized crime, this country will be better off when this particular piece of legislation is passed, just as with the auto theft and the other bills we have before Parliament to protect Canadians. We want to have the laws up-to-date, and this country will be better off with them. So I am imploring Parliament and saying, look, let's get down to business and focus on these things here, do what is right for this country, and get these bills passed.