Justice Committee on Nov. 25th, 2010

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

I'll be very brief. I'm going to give you a bit of information and you can comment on it or not, as you wish.

The parliamentary secretary raised the importance of this particular piece of legislation. I'd like to inform the witnesses that in the previous Parliament—in fact, it was in the second session of the 40th Parliament, which means before the prorogation of December 2009—the government tabled this bill. It only sat at first reading for one day before the government minister moved second reading. It was debated for four days—it spent four days in the House for second reading debate—and then was sent to the committee.

Unfortunately, the Prime Minister prorogued the House, and in so doing killed this piece of legislation. When the House resumed on March 31, the government waited 61 days before the minister again moved first reading. He then waited 154 days before moving second reading.

Now, you may not be familiar with parliamentary procedure, but opposition parties have no control over what government legislation is tabled or when the government decides, in its wisdom, to move debate at second reading so that debate can actually begin. It controls all of that, so I'm giving you this information. In fact, after the government let it sit at first reading for 154 days and finally moved second reading, we only debated it for two days in the House, because the opposition parties clearly wanted to deal with this legislation with some importance and give it priority.

You may wish to comment on that information and these facts, or you may not wish to comment. That is your privilege.

I have one question. There has been debate on an ongoing basis in this Parliament and in previous Parliaments about the issue of early release at one-sixth of the sentence. The government did not bring forth any kind of measure in this particular bill.

Because that has also been an irritant: you have had offenders convicted of white-collar crime who are released at one-sixth of their sentence. I'd like to know if you have any comments about whether you believe that should have been found in this bill.

[Lincoln Caylor]

I have no comments with respect to the partisan aspect of how the bill has made its way through the House. With respect—

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

May I interrupt you a moment?

That's not partisan. That's fact. The days I gave you are fact. There is no partisanship in that. The days I gave you and the delays are facts.

[Lincoln Caylor]

And I have no comments with respect to the delays.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[Lincoln Caylor]

With respect to the one-sixth sentence issue, the perception with respect to sentencing and white-collar crime needs to be maintained: that we are tough on crime, and in particular white-collar crime. To the extent that the bill can be considered in that light, I would support it.

[Joseph Groia]

Let me comment on the one-sixth question, because as the former head of enforcement at the securities commission, one of the issues I had to deal with was the allocation of resources. There is a dynamic tension that exists when you're the head of a regulatory agency, a tension between trying to do what is necessary to protect the integrity of the market and trying to help injured investors get their money back.

When you look at the incarceration rates of white-collar criminals you have to look at the effect they have on both of those issues. I certainly am no expert on the effect of the deterrence value of putting Conrad Black or people like him in jail, but I can tell you that doing so makes it much more difficult for investors to hope to ever see their money back. To some extent, that is a choice the House will have to make as it considers this issue, because there's no easy answer for what to do on those issues.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

May I have just a moment, Chair?

I find the point you raise quite interesting. My understanding, if one simply follows the media coverage and statements of crown prosecutors, police officers, and victims, etc., in highly media-cized white-collar crime, is that victims generally don't really get much back. Am I mistaken?

[Joseph Groia]

I think you have to look at that on a case-by-case basis. Lawyers like Mr. Caylor are very skilled at finding ways of trying to recover losses—not always from the offender. More often, you're looking at the accessories, the people around the offender. You probably are aware, for example, that there's ongoing litigation arising out of the Earl Jones case in Quebec.

What I had to do as the head of enforcement was make difficult choices. If a person who had stolen money from shareholders and who had done a very effective job of hiding it somewhere offshore was prepared to make a deal to pay back the victims, was I going to reject that offer out of hand? Was I going to simply say no, that I was going to stick to the purity of the principle and ignore the recovery?

There's no easy answer. I have a great deal of empathy for commercial prosecutors who are dealing with hundreds of people who have lost their life savings.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Ménard for five minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

You were a prosecutor. What is your immediate reaction when you find a sentence inappropriate to a significant extent?

[Joseph Groia]

I would hope that there would be an appeal and I would be confident that the court of appeal would fix it.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

Now, in all the cases that have been mentioned, do you recall one that has been appealed?

[Joseph Groia]

I'm sorry; as I indicated, I'm not familiar with the facts or circumstances of these. I'd be happy to comment if someone explained them to me.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

So do you agree with me that you would need to look at the facts of those cases to be able to judge whether or not the penalties were justified under the circumstances?

[Joseph Groia]

Yes, sir, that's correct.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

If they were not, would you agree that there would have to be a reason for not taking them to appeal?

[Joseph Groia]

Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Twenty-one cases in one short year. Is that a lot in terms of the number of fraud cases in Canada?

[Joseph Groia]

No, my guess is that it would be a fraction of 1%.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

If that.

[Joseph Groia]

If that. Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Right.

I just wanted to be sure that I understand your position. Here we have legislation that comes to grips with a real problem, that is big and getting bigger, in my opinion. However, instead of its intended goal, it achieves exactly the opposite of what it should be achieving. This is because it greatly complicates the work of prosecutors, it greatly adds to the work of judges and prosecutors, which is likely to result in them being able to deal with fewer cases and give no real hope to victims. So the victims who want to turn to the courts for restitution have only false hopes, whereas they should be able to find another way of getting reasonable restitution. Is that your view in a nutshell?

[Lincoln Caylor]

I'll speak to the restitution comments you made at the end.

You have accurately summarized my comments with respect to that issue, with one exception, and maybe I didn't make this clear in my opening comments. There are cases in which restitution is appropriate and victims seek it and are paid back through the criminal process; however, those are rare.

So to the extent that this bill enhances that process, it is a positive thing. That has to be weighed against the complexity of the restitution process, to the extent that it makes the procedure more complex.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Do you think that this bill is going to allow more victims to be compensated, or will the situation stay the same?