Justice Committee on Nov. 18th, 2009

[Rob Nicholson, Conservative, Niagara Falls, ON]

I believe it is. What you may be pointing out to me, Mr. Comartin--I don't want to put words in your mouth--is that it is possible that a judge could have a community impact statement prior. We want to codify this so that this is part of it. If a group of people who are associated for one reason or another find themselves victims, perhaps one of their members could come forward to say, “Look what you have done to this particular group.”

Yes, putting it in the Criminal Code is a first.

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

There's something in my memory, and I couldn't find it in any of the case searches that I did, but I have the sense that judges have in fact allowed for these statements in the past, having a representative voice come forward.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's possible. And there have been cases where a judge has allowed something similar to that. Again, what we are trying to do is codify, which is a very good practice...or a practice that should develop. It's the same in terms of restitution. Making it a little more user friendly doesn't mean it wasn't ever taken into consideration.

Having it codified, having it in the Criminal Code, adds to it and makes sure that it gets used and is considered in cases.

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

Are we aware if any appeals court has looked at it, where somebody's challenged the judge who allowed that kind of evidence, that kind of statement?

[Catherine Kane]

In the context of the work we do in the department with respect to victims, in the Policy Centre for Victim Issues, we've looked at the use of victim impact statements, and some of that work has revealed how courts have accepted community impact statements. To our knowledge they have not been challenged, but a lot of issues are resolved within the judge's own discretion. Because the community impact or victim impact statement wouldn't be totally decisive of the sentence, it's just one more factor, it's difficult to determine how that particular statement has had a bearing on the particular sentence. It's only to assess the impact of the crime on the community, or in the case of a victim impact statement, on the particular victim. It's not to include recommendations with respect to sentencing.

All of the purposes and principles of sentencing have to be taken into account, as well as the information provided by the victim, or in the case of community impact statements, where judges have permitted them, that information. So far it's usually been used in circumstances where sometimes there isn't a victim impact statement. An example is in drug crimes, where there's no particular victim but a whole community feels that their community is at risk in some way because of drug trade in the vicinity, or their property values have gone down, or that sort of thing.

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

The crystal meth situation in smaller communities.

[Catherine Kane]

Right.

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

What I'm looking for is whether there are any cases where judges have detailed, either at the trial level or appeal level, what they expect, a standard for what the community impact statement should contain.

If there are any cases like that, again, if you could send them to the clerk, we'll pass them on.

[Catherine Kane]

Yes, we will undertake to do that.

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

In terms of the restitution orders, Mr. Minister, I'm guessing you probably have the same experience I've had with these. Our courts are very careful about not crossing over into the civil court line and becoming collection courts. You'll hear judges saying they're not there to collect money. It's an attitude that I think is a problem with the restitution orders.

Is there any thought being given--and this would be at the judicial council level or at the education level of our judges--to providing additional education on the importance of the restitution orders and willingness on the part of the judge to entertain more evidence? That's usually what the problem is. I've seen all too many judges cut off prosecutors who want to put in more evidence as to what the restitution orders should be and in what quantities.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You raise a very interesting question, Mr. Comartin, including the whole question of provincial jurisdiction in the whole issue of seizing and realizing assets. There have been a number of very good initiatives at the provincial level that we can't forget.

Part of what we're doing is by requiring a judge to have a look at this issue and requiring the crown to respond to these, I think it generally flows that when there are changes to the Criminal Code our judiciary takes note of these. This is not a bill that contains specific provisions with respect to the education of judges. We generally leave that within the system. There are programs and initiatives. But they respond very well. When they see changes they take note of them. Now that we're requiring them to consider restitution from the offender in all cases involving an identifiable victim with ascertainable losses, I think this will be a huge step in the right direction.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Monsieur Petit. You have seven minutes.

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

Thank you very much.

Good day, Minister, Ms. Kane and Ms. Klineberg.

I'd like to broach a different subject. Unfortunately, there are still people being accused of major fraud. Quite often, victims of these fraudsters suffer from an economic standpoint. The saddest cases are those of individuals who lose their life savings, or their pension fund.

Persons charged currently are eligible to receive a suspended sentence. This Criminal Code provision still applies. Of course, our Conservative government did try to rectify the problem in the past. I was around at the time. We were never able to strengthen these particular provisions of the act because of extremely strong opposition. The opposition was unwilling to cooperate with us. We encountered many problems. I think everyone remembers Bill C-9. It was completely gutted.

Minister, people are concerned. I've had an opportunity to meet with victims on two or three occasions. I believe you were there as well. You will recall that we met Mr. Davis, whose family had had dealings with Earl Jones, as well as with Mr. Gravel, who was representing certain parties in the matter involving Norbourg and Vincent Lacroix.

The Prime Minister also met with these individuals. I met with them, along with you and the Prime Minister. The problem in fact originated in Quebec. The situation was very intense. We are now aware of other cases in Alberta, but at the time, the problem was confined to Quebec. Many meetings were held.

Most of the victims told you and told the Prime Minister they were concerned that white-collar criminals would not receive adequate sentences. That was the impression they had. I was there when I heard them say this to you. Furthermore, they have the impression, because of the system's shortcomings, that these fraudsters will merely pick up where they left off after they are released. The case of Vincent Lacroix comes to mind. Even the Government of Quebec must turn to the Court of Appeal because it believes that sentences should not run concurrently. The situation has become very serious indeed.

Nevertheless, I do have an important question for you, since we are meeting in public. The committee is considering Bill C-52. What do you say to the people who spoke to me, to you and to the Prime Minister? What do you intend to do to help the victims and put things right?

You know as well as I do that if this effort fails, we will be back to square one. Had Bill C-9 been adopted several months ago, we would not be here today. Could you clarify the situation for me? What do you plan to do for the victims to set things right?

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, Monsieur Petit, let me thank you for all the work that you have done for the victims. I want to thank you for that leadership role, particularly within the province of Quebec, and your willingness to meet with victims, your empathy with them, your understanding of what they've gone through, and your commitment to do something about the situation that victims find themselves in. It is very commendable and I'm very appreciative of that, as I'm sure all members of the House of Commons are for your work in that area.

You commented on one particular case. I never comment on a particular case, but I will say in general that one of the provisions in this bill is something that I think is of comfort to a lot of people, no matter how long these individuals serve their prison sentence—and we are going about making sure that they do serve substantial time for the heinous crimes they have committed—which is to have the provision in here for the first time that a prohibition order can be issued by a judge for up to life against these individuals, prohibiting them from handling other people's money or finances either on a professional basis or even on a volunteer basis.

As you know, victims will tell us that they know of instances when people who will eventually be released from prison, when they're released, will immediately get back into this kind of business, handling people's money one way or another. This unfortunately is the only business they know, handling people's money and doing it in a fraudulent manner. So to be able to give that prohibition order for up to life against that individual, to prohibit them from dealing with other people's money and making it another offence if they in fact do engage in that, I think are all steps in the right direction.

But you are quite correct that in our discussion with victims we say this is one part of what we are trying to do with this particular piece of legislation. The Retribution on Behalf of Victims of White Collar Crime Act, this bill, is one part of it, but as I indicated to Monsieur Guimond, our colleague the Minister of Public Safety is coming forward with a bill getting rid of accelerated parole, one-sixth provisions. This is another thing that has considerable appeal among people who want to see justice and fairness in the system. That's one piece of legislation.

But you mention as well Bill C-9 in the previous Parliament, which was to get rid of conditional sentences or house arrest for a whole wide range of serious crimes. I can't speak for the opposition parties—I'm sure they'd want to do that for themselves—but they took out the provisions that related to fraud. So, unfortunately, today, despite the best efforts of people such as you or Mr. Moore, who is the other parliamentary secretary, and our other colleagues here, it's still the law in this country that you can be convicted of serious fraud yet still be eligible for house arrest. We very much disagree with that.

We have introduced the bill again, Bill C-42, which is now before Parliament. I'm hoping that our colleagues in the opposition will reconsider the position they took in the previous Parliament and say they are going to put an end to this; they are going to put an end to people who commit serious crime being eligible to go home after they have been convicted. This is not what Canadians want.

So I thank you for raising that with me, because as you say, when we talk to people who are victims, who are concerned about this area, we always say we have to get this bill passed, this is an important component of what we have to do, but there are other measures, and I assure them and they know by the evidence that we are prepared to help them in other areas. You've identified a couple of those areas and I thank you for that.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Murphy, you have five minutes.

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

Thank you.

I again remind you that in 1992 a previous government introduced early day parole, but we won't have that argument back and forth.

A lot of people watching will be saying that they do want the perpetrators of white collar crime punished, but more than that, an awful lot of the people want their money back. Yes, we have the CDIC for the banks situation. We have insurance situations. I guess when looking at the justice end of it we realize that criminals have become more sophisticated in white collar crime, and we have to get a little more sophisticated in our response.

For instance, Mr. Minister, you will know that in New Brunswick the Speech from the Throne was given this week. The Attorney General there—and I believe you just had a meeting with the attorneys general across the country—was introducing something called a Civil Forfeiture Act for certain crimes. I'm not exactly sure of the details, but that's the kind of innovative stuff that citizens out there are looking to us as parliamentarians to come up with, safety nets in advance, or the ability to claw in the proceeds of crime and ratchet it up a little more. Can you tell us what your government is doing in that regard?

Yes, punishment is important. Retribution is important. All of those things are very important. But at the end of the day as well, for those seniors who have been swindled and their life savings have disappeared, they don't look at silos of justice, public securities, public safety, and financial institutions. They want to know what we parliamentarians are doing to get victims their money back. What can you tell us about that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You touched on a very good point, Mr. Murphy. That is, our provincial colleagues, who have great responsibility with respect to this area, are actually bringing in legislation. One of the things that impressed me in my recent meeting with attorneys general from across Canada is the initiatives by a number of provinces to assist victims in the collection of their money.

Mr. Comartin touched upon the jurisdictional issues that relate to this. On the one hand we're cautioned to make sure we don't go too far into provincial areas of this, but I'm quite impressed, quite frankly, by the level of concern that is taking place at the provincial level with respect to this.

With respect to victims in general, you will know and remember very well the emphasis we have placed on victims as a government with the creation of the office of the first federal ombudsman for victims of crime. This was a great step in that direction. Quite apart from how good a job is being done at the provincial level, and I'm very supportive of their efforts, we want to make sure that the concerns of victims are heard at the federal level. I'm very pleased about the work that is being done within that office. I'm very pleased and proud of the fact that we indeed created that position and that office to make sure that victims' issues are heard.

If you look carefully at the legislation that we have here before you--and these are my responsibilities--requiring the judges to consider restitution from the offender in all cases of fraud involving an identified victim with ascertainable losses is an important step forward. As well, there's requiring the judges to provide reasons if they don't move in this direction and putting the onus on the crown to advise the courts as to what steps have been taken to allow victims to set out their ascertainable and quantifiable losses so that restitution can be considered. This is one of the things victims told us. They don't want these things to go through and then find out it's too late for them to have their issues heard.

Monsieur Petit, myself, and others, when we heard this from these groups, said that makes sense. That's exactly what we should have in here: make sure that there is a forum for their concerns to be heard. You will be one of the first, I'm hoping, to agree with me that these are constructive measures being taken to make sure the system is more user friendly for victims and to make sure that the concerns of victims are before the court.

This is part of it, and I commend our provincial colleagues for what they are doing in this area. I indicated to you the federal ombudsman for victims of crime and the issues he and his office are dealing with. These are all part of it, because, you're right, one piece of legislation is not the whole answer. It's an important part of the answer, but it's not the whole answer. I'm pleased that it's part of a larger context.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chair.

Good day, Minister.

Sir, the maximum sentence for fraud is 14 years' imprisonment. I am trying to understand how a minimum sentence of two years would deter someone from committing fraud, a white-collar crime. Truthfully, it would have been better to increase the sentence to 16 years. If the punishment is harsher, the deterrent effect is stronger. How could a two-year sentence get a person to think three or four times before committing fraud, when we know that right now, fraudsters face the prospect of 14 years's imprisonment. I just do not understand the logic here.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not quite sure I understand your logic, Mr. Nadeau. Are you saying that a 16-year maximum is going to start preventing these people from doing it--

[Richard Nadeau, Bloc, Gatineau, QC]

No, I'm saying that...

[Rob Nicholson, Conservative, Niagara Falls, ON]

--or be an incentive for them not to do it? I don't know....

[Richard Nadeau, Bloc, Gatineau, QC]

The bill imposes a minimum sentence of two years, when in fact the legislation provides for a maximum sentence of 14 years. Mention was made of parole eligibility after serving one-sixth of the sentence. Why not address the issue of the tax havens that fraudsters can retreat to once they have served their sentence? Why not bring in harsher measures and insist on steps being taken to provide restitution to the victims of fraud?

I want to know how a minimum sentence of two years acts as a deterrent, when provision is already in place for a maximum sentence of 14 years. I don't understand why you would bother with a two-year sentence or include it as a provision in a bill.

Please explain this me.

[Rob Nicholson, Conservative, Niagara Falls, ON]

To be fair, Monsieur Nadeau, I know the Bloc has a problem every time we bring in these tough sentencing provisions. For the one on trafficking in children, the Bloc voted against the mandatory prison terms for people who traffic in children. If you had a problem with that one, I guess I can imagine why you have a problem with this one. You just don't like the whole idea.

I want to send out the right message to them, Monsieur Nadeau. I want people to know. They may do it anyway. They may say they're going to commit crime anyway, but I want to make sure that there are serious consequences that result from it. Starting off at two years and building on that--and building on that with the aggravating factors--I think sends out the right message to the community that this is not an area to get involved in.

So on that, plus the others--

[Richard Nadeau, Bloc, Gatineau, QC]

I'm sorry, Minister, but my time is running out.