Justice Committee on Nov. 25th, 2009

[The Chair, Conservative, Ed Fast]

I'll certainly take that suggestion under advisement. I had always assumed this committee worked quite collaboratively. In fact, it's actually been a joy to work with this committee and for this committee.

Let me just explain that between meetings we have emergent things that appear from time to time. In this case, I was taking note of the fact that at our last meeting we had the RCMP scheduled to appear. We kept them waiting, and then at the last minute, because of votes, we decided not to hear them. So we wanted to accommodate them with an additional hour. We could have put them into the two hours we have today, but that would have compromised some of the testimony or the time that today's witnesses would have to provide their own testimony. We're just trying to be reasonable.

I will certainly ask the clerk to correspond with you a little more in the future just to get your feelings as to whether an extension is appropriate. But I also note that the agenda is sent out usually in a timely manner. The notice of meeting spells out exactly what times are proposed. It can be and often is amended, sometimes even on three or four occasions, to reflect changing circumstances. I ask all of you to take note of the notice of agenda as soon as you receive it. If you have a problem with it, please advise me or the clerk, and we'd be pleased to work with you in making sure our committee works well.

Having said that, I am now going to move to our....

Do we have two more?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Très rapidement, monsieur le président, I just wanted to say that I find nothing unusual in the chair of a committee making such arrangements as have been made today, based on the very unusual circumstances that occurred at our last meeting.

Merci beaucoup.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Storseth, you wanted to speak on this?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Yes, just a couple of quick points, Mr. Chair.

One, in your defence, we did sit on a committee jointly where it was common practice for the chair to take this authority so we could expedite committee business in fairness to everybody.

Two, I would like to know if you could reference for the committee--perhaps not today--where you found your ruling on the time allocation, because we have had this question come up in another committee, where a clerk informed us that because the agenda shows 3:30 to 5:30 traditionally, the committee is deemed to be shut down at 5:30 unless otherwise requested by the committee, as these rooms are often booked afterwards for other reasons.

So could you clarify where you found that?

[The Chair, Conservative, Ed Fast]

I'd be pleased to clarify.

Again, in O'Brien and Bosc, on page 1087, dealing with adjournment, it reads as follows:

A committee meeting is normally adjourned by the adoption of a motion to that effect. However, most meetings are adjourned more informally, when the Chair receives the implied consent of members to adjourn. The committee Chair cannot adjourn the meeting without the consent of a majority of the members, unless the Chair decides that a case of disorder or misconduct is so serious as to prevent the committee from continuing its work.

I can assure you, I've never yet witnessed a circumstance in this committee where I would have had to adjourn due to disorder. So I'm very pleased with that. As I say, I think this committee has worked as collaboratively as one might expect in a minority Parliament, and I want to thank all of you for that.

We still have a motion on the table.

I have Mr. Bigras and Monsieur Lessard to speak.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chair, I just wanted to make sure that Mr. Lemay's motion had been accepted and we would take the vote before hearing our witnesses.

[The Chair, Conservative, Ed Fast]

Yes.

Mr. Lessard.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

I am saying the same thing, Mr. Chair, because there is one unavoidable fact: there will be a vote at 5:45. We would have to finish our work at 5:30. To use our witnesses' time well, I think we should take the vote.

[The Chair, Conservative, Ed Fast]

Absolutely.

Seeing no one wishing to speak further, I'll call the question on the motion, which is to adjourn at 5:30 rather than at 6:30.

(Motion agreed to)

So we will adjourn at 5:30 to go to our vote.

We'll now go to our witnesses. I want to thank them for their patience.

First, we have the Insurance Bureau of Canada, represented by Dennis Prouse and Richard Dubin. We also have the National Pensioners and Senior Citizens Federation, represented by Jim Hayes and Art Kube; it's nice to see you again. We have the Canadian Justice Review Board, represented by William Nichol, who is its Chief Executive Officer, and finally we have the Association québécoise des avocats et avocates de la défense, represented by Lucie Joncas.

I'm going to allow Ms. Joncas to begin because she has a timeline to meet.

I believe you have to be at another meeting at five o'clock.

[Lucie Joncas, President, Association québécoise des avocats et avocates de la défense]

I am before the senate committee on another bill at five o'clock.

[The Chair, Conservative, Ed Fast]

Yes. So we'll give you time to make your presentation.

Perhaps what I'll do, given the fact that we may be running out of time, is allow any specific questions to you to be asked first. I'll give a five- or ten-minute period if anyone has specific questions for you, and then we'll move on to the other witnesses.

Is that all right?

[Lucie Joncas]

Thank you very much for the accommodation. I'm sorry, but obviously I thought I was starting at 3:30.

To begin with, the Association québécoise des avocats et avocates de la défense would like to thank the committee for this opportunity to talk to you about our concerns regarding Bill C-52.

The AQAAD is composed of more than 600 members who practise mainly criminal law, and each region is represented on our board of directors. The needs of the regions are very diverse, and when we present submissions we try to consider the needs of both northern communities and urban communities.

The AQAAD is aware of recent problems involving frauds that caused substantial losses for many members of the public. Quebec has been particularly affected by the embezzling of funds invested by individuals, but we do not believe that the judicial system has responded to this situation adequately. The AQAAD has always taken the position, in principle, of favouring judicial discretion, so is inevitably opposed to mandatory minimum prison terms.

In recent years, we have seen a significant erosion of judges' discretionary authority, and we deplore that situation. Repeated attacks undermine the credibility of the system and jeopardize its ability to operate. Bill C-52 provides for a two-year mandatory minimum sentence. The Quebec Court of Appeal put us on notice several years ago when it refused to impose conditional sentences of imprisonment for substantial frauds. We will recall the guilty pleas or verdicts in certain cases that affected Parliament more directly, and the Court of Appeal definitely put us on notice that firm prison terms should be handed down. So we recognize that principle and we respect it.

However, I think we have to recognize that there are exceptional cases and that major injustices could result. The amendments proposed to subsection 1.1 of section 380 refer to "the total value of the subject-matter of the offences", or,in the French version, "la valeur totale de l'objet des infractions en cause". We have to remember that under section 21 of the Criminal Code there are various ways of being a party to an offence that might involve a very significant total sum, but where an individual who played a very minimal or secondary role would fall within the provisions you are proposing. So I think the specific role should be taken into consideration, and the need to individualize sentencing is not being respected when this kind of minimum sentence is imposed.

I also think we have to remember that the Criminal Code provides for a maximum term of 14 years for any fraud over $5,000. So judges have all the latitude they need, lots of elbow room, to impose sentences well over what is proposed, in appropriate cases.

There is also another clause that concerns us. We see that you want to impose the condition that a person not work in places that could result in more offences being committed, but the Criminal Code already provides for this possibility. Paragraph 732.1(3)(h) provides that when a probation is made, the court may prescribe that the offender

(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations ... for protecting society and for facilitating the offender’s successful reintegration into the community.

So the Criminal Code already provides for this possibility in probation orders. We must remember that the people who sit on parole boards, both provincially and federally, have complete authority to impose exactly these kinds of conditions. And believe me, they do their jobs well and they regularly impose all sorts of conditions for protecting society.

So our position, in principle, as representatives of the Association québécoise des avocats de la défense, is that we have to stop usurping the discretion of the courts. I think this bill does not meet any legal need and can only be a response to a political need. This is what concerns us: that there will be a constant erosion of judicial discretion.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Welcome to Simon Roy; we'll get to you in a moment.

I'm going to open up the floor to short questions of two minutes apiece.

Mr. LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chair.

Thank you for your testimony, Ms. Joncas.

[The Chair, Conservative, Ed Fast]

Mr. LeBlanc, you're asking questions, correct?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Yes, of Madam Joncas.

[The Chair, Conservative, Ed Fast]

Okay, that's fine. Go ahead.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

We apologize for the delay at the start of the meeting.

I have a very specific question. We have met with people involved in the Earl Jones case, for example. When it comes to the alleged victims of these situations, a lot of their frustration arises from the impossibility of recovering funds that may have been taken in one of these major frauds. There are changes proposed to the law to try to enable judges to give certain instructions to facilitate recovery of these funds, but in reality it is very difficult.

It has been suggested that we borrow certain aspects of the law on organized crime. For example, if a person is convicted of a massive fraud of more than $1 million, there would be a reverse onus, if I have understood the provisions of the law on organized crime correctly, that would require the person who is convicted to prove that their property was not the result of the fraud. That would help the court and the judicial system to try to recover property and then compensate the people who lost money.

I would like to hear your reaction to this. It is not included in the present bill, it is a suggestion that has been made to us.

[Lucie Joncas]

It is odd that you would ask me about that section, because I was theamicus curiae to the Supreme Court in R. v. Lavigne, in which the Court considered precisely the possibility of seizing property obtained by crime. In fact it is a possibility, but a civil action and class actions are always possible.

Victim statements and the impact on victims are already provided for in the Criminal Code. Often, in cases, that is part of a settlement: the property is returned or is seized. The Crown has the power to make that kind of application, and we see it regularly in relation to proceeds of crime. So it could be a more viable option than the one being proposed.

[The Chair, Conservative, Ed Fast]

Thank you.

Now we'll move on to Monsieur Lessard.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Thank you, Mr. Chair.

I would like to thank our guest and the other guests for being here today. I will be very brief because we have only a little time.

As you understand Bill C-52, would you be able to tell us whether the sentences for similar frauds will be applied cumulatively for multiple frauds of the same nature? For example, if a person commits 12 frauds, the minimum sentence would be 12 times two years.

[Lucie Joncas]

As I understand it, the Court of Appeal answered that question recently in the case of Mr. Lacroix. He had been sentenced to five years, calculated consecutively. The Court of Appeal refused because he would certainly be entitled to a jury trial. The Charter provides that any offence that where a sentence of five years or more can be imposed for an offence there is a right to trial by jury. So after reading through the bill, I think there are several issues that should be noted, but I don't see how the sentences could be consecutive.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

That doesn't change the present situation at all, including in the case of securities, for example. In the case of Mr. Lacroix, he was tried under two separate statutes, and that meant his sentence was reduced.

[Lucie Joncas]

It was reduced, but in the criminal case, he was sentenced to prison for 13 years. So it was not a very big reduction, after the sentence to five years in prison! Without going into the separate statutes, if someone is liable to imprisonment for five years or more, they are entitled to trial by jury. We have to abide by the provisions of the Charter, but I don't see how these sentences could be concurrent.

Certainly if other offences are committed and there is a criminal record, the sentences will go up, because the criminal record is an aggravating factor. When there is a single transaction, although there may be several counts, I think there should not be concurrent sentences.

[The Chair, Conservative, Ed Fast]

Merci.

Mr. Comartin.