Justice Committee on Oct. 7th, 2009

[The Chair, Conservative, Ed Fast]

I call to order meeting 37 of the Standing Committee on Justice and Human Rights. You have before you the agenda for today. We have a number of matters to deal with.

First, we have one last organization as a witness in our review of Bill S-4, an act to amend the Criminal Code in regard to identity theft and related misconduct. After hearing our witnesses, we'll move to clause-by-clause consideration of the bill.

Once we've completed clause-by-clause, we'll deal with Monsieur Ménard's motion, if he wishes to, on the Cinar case.

Once we've completed that discussion, we'll move to an in camera meeting where we'll consider a draft report on declaring certain groups criminal organizations. That was Monsieur Ménard's former motion, and we've completed that study now.

So let's move forward with our last witnesses on Bill S-4. We have with us the Canadian Internet Policy and Public Interest Clinic, represented by David Fewer and Tamir Israel.

Welcome to you both. I think you understand the process here. One of you has 10 minutes to present, and then we'll open the floor to questions from our members.

Mr. Fewer or Mr. Israel, do you want to start?

[Tamir Israel, Staff Lawyer, Canadian Internet Policy and Public Interest Clinic]

We would like to thank you, Chair and honourable members, for inviting us to speak before you today on this important issue.

My name is Tamir Israel. I am staff counsel with CIPPIC. With me is David Fewer, our acting director. We apologize for not providing you with a brief of our position today.

CIPPIC is a legal clinic based in the University of Ottawa's Faculty of Law. Much of our mandate involves addressing the legal and policy concerns that arise from new technologies and specifically from the ever-increasing availability of private and personal information in electronic formats.

For a long time, we have been concerned with the many facets of identity theft and have researched legal and policy approaches to that problem. This work has resulted in, among other things, a public-private multidisciplinary project funded by the Ontario Research Network for Electronic Commerce, ORNEC, and a series of six working papers available on our website at www.cippic.ca. These cover most aspects of the issue.

We will be releasing a final white paper later this year, updating and summarizing our work on this issue and making specific recommendations for law and policy reform needed to address identity theft in a comprehensive manner.

We would like to point out that identity theft is a very serious phenomenon with specific impacts on individuals and society at large. You've heard that ID theft costs our economy $2 billion annually and that this is a conservative number.

There is an associated loss of confidence that is much more difficult to quantify, but equally serious. We have seen figures estimating that individual victims in Canada spend approximately $164 million of their own money and over 18 million hours annually just addressing the fallout from having their identities stolen, just to re-establish their identities.

In addition to this social and individual financial cost, there is also the invasiveness of such offences. People who have their personal information or identities taken from them for such fraudulent purposes often feel violated. People have told us that victims of ID theft often exhibit feelings similar to those seen in victims of home burglaries. There is serious psychological harm here, as well as the financial costs.

We feel that the magnitude and nature of these harms calls for a criminal component as part of any response to the problem of ID theft.

Our study of Bill S-4 has convinced us that it is well-tailored to address the specific and fairly well-documented problems raised by identity theft in the criminal sphere. It manages to provide police with the tools they need in this sphere to address these problems, while avoiding the problems of overbreadth. It does so while managing to maintain flexibility and technical neutrality. The reason it is able to do this is that it directly addresses the specific issues posed by identity theft and does not overreach in that respect.

We're here today to say that we support this bill and would gladly try to answer any outstanding questions or concerns you might have on it. We've been paying attention to your committee hearings and we've noticed that some have been raised.

But we'd also like to remind the government, in brief, that its job with respect to identity theft is not done. ID theft requires a comprehensive response. This bill largely and effectively addresses the criminal portion of this response. In addition, the government's Bill C-27, which is also currently in committee, takes important regulatory steps that will deter a great deal of ID theft activity.

But more reforms are essential to address prevention and to help individual victims deal with the problems that identity theft raises for them. Many of these additional reforms are beyond the scope of a criminal bill such as this one, and we would not want to delay the implementation of Bill S-4. However, we have your attention, so we would like to point out to you the ways in which the Criminal Code can be improved to better accommodate the needs of victims. The victim restitution provisions in clause 11 of this bill will go some way to doing that, but we feel that more can be done.

We have suggested in the past and do so here again that it would be helpful to add provisions to the Criminal Code giving victims the right to local police reports. We have found from our research that this helps victims address jurisdictional issues.

What often happens is that a resident of one city, let's say Ottawa, will have their identity stolen or the ID fraud will manifest in another city, let's say Edmonton. The victim will be directed to Edmonton police, who will have jurisdiction. The local police force will generally refuse to open an additional file because they don't like to investigate claims committed in other jurisdictions. Although I note in defence of Ottawa that we were told the OPS in particular is willing to do this, most other police forces will not.

This is a serious problem. ID theft often requires immediate action, and for an Ottawa denizen to have to contact Edmonton before a file is opened, that takes a lot of time. In the meantime, they are having credit problems.

On the other hand, ID theft also has long-term, recurring ramifications, and it simplifies matters a great deal for victims to have local police as their point of contact for any investigation. The police can then forward the investigation to a more appropriate jurisdiction, but they should remain the point of contact. It should be clarified that this applies to victims, even if the financial institution in question absorbed all the financial harm in a particular instance.

In addition, we have heard that police reports often don't contain a great deal of information. They do not even state that the offence being investigated is fraud. This means they're not very helpful to victims, in and of themselves, if they're trying to vindicate themselves with persistent creditors or with Equifax or anybody else.

To remedy this, other jurisdictions have provided, within their criminal statutes, a right to a judicial determination of factual innocence from a court of law, once an investigation is successfully completed. We point you to section 530.6 of California’s Penal Code, if you would like guidance on provisions of this nature either now or in the future. There are other examples from other jurisdictions that can be found in our working papers on our website. A broader range of suggestions is available in our working papers as well and will be collected and updated in the white paper we intend to release shortly.

We invite any questions on the issues we've raised here, on any outstanding concerns you may have with respect to the current bill that have been raised in the past hearings before you, or on any other steps that can be taken to alleviate identity theft.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you very much.

I'm going to use my discretion to limit questions to five minutes per person per round.

Mr. Murphy.

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

I'll speak very quickly.

I listened to what you said. You said you are in support of the bill. You don't have a brief, so I'm a little at a loss, and I didn't go on your website to see what your white papers and such say, and maybe I got a little lost. I got some reference to some California law.

What I'm getting at is this. You don't think there's anything that can be added to this bill that wouldn't be beyond its scope. So you're not suggesting that. You support the bill.

You do, however, want further amendments to the Criminal Code, insertions to the Criminal Code, in the future perhaps. In the simplest three-minute fashion that you can, what precisely are those, so we're covered here?

[Tamir Israel]

Absolutely. It's open for you to add them into this bill if you feel you would like to do that. The two Criminal Code provisions we've seen in other penal statutes in other jurisdictions that have done a great deal to help victim problems are a right to a local police report or a local police investigation and a process for a judicial finding of innocence after a police investigation is completed. This gives victims a point of reference locally, and it also gives them something to show creditors that come after them for years, often, to show that they're—

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

On that judicial finding of innocence—I don't think there's such a thing in our jurisprudence—you can get a record of dismissal, or a record of acquittal rather, and you can get a letter about a dismissal of a charge. I've had some experience in that, where people want to say, look, I was charged but I was not convicted. You're saying these exist in other jurisdictions, these judicial findings of innocence?

[Tamir Israel]

Right. We're not worried about individuals being charged with an offence here. We're worried about creditors—

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

Innocent third parties.

[Tamir Israel]

Innocent third parties who are victims of identity theft. Just something they can show to their creditors to say they've been a victim of identity theft, so here are—

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

Do you think that would be best dealt with by sort of an administrative body or office--consumer affairs, for instance?

[Tamir Israel]

In other jurisdictions they have done it through the court system. Certainly if there was a standardized regulatory body that could issue something official that was legally recognized—

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

It does exist? Where?

[Tamir Israel]

No, no. I'm saying that would be another—

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

Now we're just relegated to Equifax as mercy for clients who were wrongfully accused of credit fraud. Okay.

[Tamir Israel]

Equifax doesn't accept anything. They have a pretty high standard. They like to conduct their own investigations. In other jurisdictions they've found that this is something they can do through the penal codes, and that was an effective way of addressing it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Lemay for five minutes.

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

I am going to pursue Mr. Murphy's line of questioning.

In the Criminal Code, there is a specific section—I didn't have time to look for it because I was listening—that says that if you are a victim, the Crown prosecutor must inform you of the results of your complaint or the court's decision regarding your complaint.

For example, someone steals Marc Lemay's identity and is convicted of that charge. As a victim, I am automatically informed. I do not understand why you would want to include this provision in the bill, because that is already being done now, and it is a requirement. When that section was added to the Criminal Code, it related primarily to victims of criminal acts. And, of course, victims of assault—many of whom were women—were not being made aware of what had happened in court.

Did I misunderstand, or are you asking for that to be added?

[Tamir Israel]

Certainly, it's a good point.

We're not asking for a finding of innocence. This is not a response to an individual being charged with an offence. Maybe there are other venues that could address this, not through the criminal system. It's just an official statement from the court saying that an investigation has been carried out and the police have found, and there is a result, that this individual has been a victim of identity theft. The individual is not being accused of an offence. It's just a statement—in other jurisdictions they've chosen to do it through their penal code and through the courts—so the victim has something to show that there's been an investigation and that there is an official finding that they have been the victim of identity theft, which they can take to creditors to stop them from harassing them.

It is something that we think can reasonably be addressed through the Criminal Code. It's been done this way in other jurisdictions. It's a result of a criminal investigation that's getting judicial sanction.

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

Thank you, I'm done.

[The Chair, Conservative, Ed Fast]

Thank you, Monsieur Lemay.

Mr. Comartin, five minutes.

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

Thank you, Mr. Chair.

Thank you for being here, gentlemen. I have no questions.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to the government side.

Do we have any questions? None?

Anybody else?

Thank you so much for your testimony. We'll let you go.

In the meantime, the committee will now move to clause-by-clause on this bill. We'll just take a moment.

We also welcome back to our committee Joanne Klineberg and Marke Kilkie. Welcome back. They're here to assist us.

You have a number of amendments submitted by the NDP, by Mr. Comartin, and we'll walk through those.

We'll start off with clause 1. Are there any amendments to clause 1?

Seeing none, I'll ask the question.

(Clause 1 agreed to)

[The Chair, Conservative, Ed Fast]

We'll move on to clause 2. Are there any amendments to clause 2?

Seeing none, I'll ask the question.

(Clause 2 agreed to)

We'll move on to clause 3. Are there any amendments to clause 3?

Seeing none, shall clause 3 carry?

(Clause 3 agreed to)

Moving on to clause 4, are there any amendments?

Shall clause 4 carry?

(Clause 4 agreed to)

On clause 5, are there any amendments?

Seeing none, shall clause 5 carry?

Monsieur Petit.

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

Since there do not appear to be any proposed amendments to all these clauses, why not pass clauses 5 to 13 at the same time?

[The Chair, Conservative, Ed Fast]

Monsieur Petit, there are four amendments touching on different clauses. You are correct that we could have done the first six clauses in an omnibus motion, but since we've done the first five already, we'll just do them one at a time.

(Clause 5 agreed to)

Moving on to clause 6, are there any amendments?

Seeing none, shall clause 6 carry?

(Clause 6 agreed to)

(On clause 7)

Moving on to clause 7, there is one amendment. If you look at the reference number at the top of your amendments, this is amendment 4126584. I am advised, and I rule, that it is in order.

Perhaps, Mr. Comartin, you could present the amendment.