Justice Committee on Nov. 23rd, 2009

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

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to the next questioner.

I want to remind everyone here that there is going to be a vote in the House, as you all have seen, in about 28 minutes. So what I'm proposing to do is allow Mr. Comartin a brief question and allow Monsieur Petit a brief question, and then we'll move to the vote.

Mr. Comartin.

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

Thank you, Mr. Chair.

Thank you, witnesses, for being here.

Mr. Logan, I think you have some material there that sets out your design for the model. Just so we're clear, would you leave a copy of that with the clerk of the committee.

And Ms. Urquhart, you're going to do the same with the presentation you had, please.

[Gary Logan]

Most certainly.

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

Let me go to the restitution part of it and the whole area of trying to follow assets.

Have you seen any analysis—and I'm thinking from a legal perspective—of actual amendments we might be able to do to this bill? Everybody at this committee basically supports the bill. We're just looking to see if there are ways of strengthening it.

And in that regard, on the restitution side, there were a number of us in Italy in the spring and we got a lot of information from their forces. This was one of the ways they broke the back of the mafia there--they think they've broken the back of the mafia. But they put together a whole group of people who not only led the prosecutions, did the prosecutions, but also went after the assets. That's how they broke the back of the mafia, that particular family. There are other families still operating. They haven't gotten to them yet.

Have you seen any analysis in the Canadian scene where we could strengthen the restitution? I'm thinking in terms of pursuing assets once the person has been convicted, being able to go after family members or friends who have received the assets by way of gifts or transfers. Have you seen anybody—and I'm thinking from a legal standpoint now—who's done an analysis of that and what we might be able to do?

[Gary Logan]

I can honestly say no, I have not. But to me, that makes absolute sense. And I do know that what we have done is this. Where we have come across family members and other people who have benefited from the proceeds of those crimes, depending on their involvement and their knowledge, they have actually been charged, and as a result of that, we've been able to attach those assets to them, to the crime. But realistically, looking at some analytical research as to that, no, we haven't done that.

The other difficulty we have, and we've seen that in years gone by with a lot of the larger cases, is with the police. I guess the mentality there is this: are we the resource that is to be used to go back to look and then detect where all of these assets have been segregated off to, or do we enforce it as the Criminal Code says: you committed the offence of fraud, you took the money, where is it? You can't explain it. Let's go. You're in. And that's pretty much where the police end it.

But I agree. If we have the ability now to move forward—and it is going to take an act to change that—and engage the police, or engage a component of the police now to trace those assets and remove those assets, as you've said, I agree with you, that is a good way of breaking the backs of organized crime. And in Canada we are now seeing a lot of that.

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

Am I restricted to just the one question?

[The Chair, Conservative, Ed Fast]

No, you have a little bit more time. You have two minute, if you want use that.

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

Thank you, Mr. Chair.

Ms. Urquhart, I'm not sure if you're best or Mr. Cunningham. I don't know if you've looked at the community order that this empowers the judge to take into account. So this would be a community statement rather than an individual victim statement. Have you taken a look at that and are you satisfied?

And then I have a similar question. On the prohibition order, which would prohibit somebody from ever working in this field, or at least for a period of time, could either one of those be strengthened in any way, in your opinion? Perhaps you could make comments on that.

I'm not precluding you from commenting as well, Mr. Logan, on those two sections. The victim impact for the community is a totally new concept, so I'm wondering if you've done any thinking on that.

[Gary Logan]

Yes, we have been for years. We always have. As a matter of fact, in a lot of the fraud investigations I've been involved with, and even the ones before I retired, we always made sure the victims of these types of crimes, particularly seniors and other groups, were identified and that victim impact statements were completed by the victims for the court. And now we see the communities specifically being targeted because of their background and the cultures within.

This would be a tremendous idea, but realistically, it would be on the back of the existing order or the existing format that they currently have in use for these types of crimes. And it was only until recently that victim impact statements were really used by people victimized by fraud. They were for a more serious—

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

A physical nature?

[Gary Logan]

Exactly.

[The Chair, Conservative, Ed Fast]

Thank you.

One final question from Monsieur Petit

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

Thank you, Mr. Chair.

Thank you, Mr. Logan and Mr. Cunningham.

I have met you before, Mr. Cunningham. I mention that so that people know why I am going to ask you questions.

I would like to know one thing, specifically from you, Mr. Logan. I read your brief and I listened to you carefully. I have met you before as we have studied other matters and I followed what you said about the system by which the police would get involved.

You know what happened in Quebec. Norbourg was licensed by the government.The product Norbourg sold came from the Caisse de dépôt et placement du Québec, another government agency. Among the people who were supposed to be investigated, there was someone called Éric Asselin, who was an investigator at AMF, the Autorité des marchés financiers—the former Commission des valeurs mobilières—and who was working as a vice-president at Norbourg.

Then there is the Earl Jones case. He did not have a licence, but he was handling money, and banks were opening trust accounts for him, for goodness' sake.

Mr. Cunningham's question is relevant. Do you see any possibility of restitution in the legislation? You mentioned finding a way to get people's money back. The companies employing those people included Norbourg and the Caisse de dépôt et placement. Those are big companies. Some have been compensated because they had insurance or licences. Others have not been. Others have gone bankrupt and have been discharged of all their debts.

How do you see the bill in terms of seniors who have lost all their money? You seem to be saying that things like mandatory minimum sentences are deterrents, but I would like you to be a little more precise.

I have given you an example where the government was involved from beginning to end. How do we solve that problem? We are not talking about any Tom, Dick or Harry anymore. In Quebec, everything came from the government, from the inside people to the last ones involved,

How do you want us to go about it? Do you want a body that reports provincially? I assure you that it will not be very strong. Do you want it to be federal? Maybe that is possible. How do you see it?

[Gary Logan]

When you're talking about reporting, are you talking specifically about the securities crime unit and its ability to look at ways to obtain or redress those losses?

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

Yes.

[Gary Logan]

If you are, I think we're talking about two different functions. The police role operates under the Criminal Code. They have a specific set of guidelines and rules they must follow—evidence relating to criminal offences and criminal prosecution. There has to be some form of evidence that would indicate that any other member within that organization participated, had knowledge, or in any way took part in a criminal activity. Based on that, then the police would be able to use that authority to make the arrest. At the end of the day, restitution and/or recompensation would be forthcoming based on their role and the losses segregated for their component of that activity.

To look at the securities unit strictly from a criminal....and all they would be is criminal. There's no civil...there's no recovery at that stage. That is only for the purposes of intake assessment and assignment to the police service having jurisdiction. Really, there's no difference with the current system of policing as it pertains to fraud.

Now, after a criminal prosecution, there is nothing prohibiting any victim from working the civil side of it to recover, because the test and the threshold is far less than it would be on the criminal side as far as culpability or proving guilt or innocence goes.

My experience is that if you get two of them running together—a criminal prosecution, an investigation prosecution, and then you get the civil component—normally the civil component will sit sine die. In other words, when the criminal component is completed, based on the decision, the involvement, and the evidence, they will then have a stronger case to make whatever recoveries they want on the civil side. For now, you can't blend the two to attempt to make a collection. I'd love to. It would be great. But I think we'd be getting too close to a real policing state if we did that.

[The Chair, Conservative, Ed Fast]

Thank you.

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

Thank you.

[The Chair, Conservative, Ed Fast]

Unfortunately, we're out of time because of the bells.

I want to thank all three of you for coming.

We're going to have to make some arrangements with our next panel, because we may not be back in time.

It's customary for me to suspend at this point. Is there any will by the committee to actually adjourn? We won't have much time left when we get back from the votes.

Monsieur Petit.

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

Yes, but—

[The Chair, Conservative, Ed Fast]

We're suspending.

[The Chair, Conservative, Ed Fast]

We have a quorum, so we'll reconvene.

At this point in time, we'll allow Mr. Comartin to raise his point of privilege.

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

Thank you, Mr. Chair.

This is a point of privilege. I'm pressing to have it dealt with because the rules require any point of privilege to be raised at the first possible opportunity.

Mr. Chair, this involves information from me and Mr. Lemay, so this point of privilege isn't just mine. It's at least his, and realistically it's the whole committee's.

We had both sought specific information from Mr. Don Head--he's head of Corrections Canada--in the period of time where he was before us on November 4. We both had very specific questions and data we required. At the end of that session with Mr. Head, he made it very clear--and I've got the blues here if somebody wants me to read it to him--that he undertook, those are the words that he used, to provide this committee with that information. He was to provide that, and he said he needed one to two weeks. That was sufficient time for us to receive it and use it in the clause-by-clause phase of Bill C-36. In fact, it was not received from him by the time we dealt with clause-by-clause a week ago today.

I'm led to believe both from the clerk of the committee and from my discussion with Mr. Lukiwski, the deputy House leader for the Conservative Party, that he gave it to the Minister of Public Safety and National Security. Mr. Lukiwski confirmed early this afternoon that in fact the minister had it, has had it since at least last week, last Monday, has not seen it, is reviewing it, and will provide it to us in a week's time.

Mr. Chair, I think you've been around here long enough, as have most of the people sitting here today, to know that this process is not the proper process. It's one that in fact offends the work we as a committee are supposed to perform. It offends our right to information from the public service in a timely fashion that we were led to believe was there.

I want this committee to make a report and I've actually prepared that report. It's a short one of only four paragraphs. It basically sets out the history. I didn't make reference to Mr. Lukiwski because I prepared it before I had the opportunity to speak to him or he had an opportunity to speak to me. But it sets out the facts that I've just recounted, that there has been direct interference by the minister in a situation where he should not have had any involvement at all. It has made it impossible for this committee to use that data that we had sought from Mr. Head and Corrections Canada in our discussion around BillC-36, both in committee at clause-by-clause and then today in the House when we were dealing with it at report stage and third reading stage.

So what I need is a report from this committee to be given to the House overnight, so it's there in the morning, so that I can then pursue my claim for privilege in front of the Speaker tomorrow morning when I am speaking to Bill C-36.

Mr. Chair, in that regard so we're clear on this, the Speaker cannot entertain my motion with regard to privilege without hearing from the committee. The rules are quite clear on that, that he can't reach into the committee, he can't see what happened at the committee. We have to advise him of that, and that's the purpose of my motion today, to have this information passed by way of a report to the committee overnight so that it will be in front of him tomorrow morning when I move my motion on privilege.

I think those are basically the facts, so I would like to proceed on that basis. As I say, I have the wording. I can read it all again if you wish me to. I have extra copies. I did not have time to translate it, but I have extra copies of the report as I would want it presented to the House tomorrow morning and voted on this evening by this committee.

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, do you have the report in both official languages?