Evidence of meeting #38 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was restitution.
A recording is available from Parliament.
Lawyer, Bennett Jones, As an Individual
My view is that without the resources to investigate and prosecute these cases, this bill will have little impact.
Conservative
The Chair Conservative Ed Fast
All right. Thank you.
I believe the government side is waiving its right to ask another question.
I'm going to take the extraordinary step of making just one comment. There was some reference to the absence of accelerated release legislation. In fact, the government has actually tabled accelerated release legislation under Bill C-39, and that was referred to the public safety committee on October 20. That would eliminate accelerated release for non-violent first-time offenders.
Thank you. We're at the end of our first hour, so we're going to move to clause-by-clause. I want to thank our witnesses for appearing.
Your testimony has been very helpful and I appreciate your attending.
We'll suspend for two minutes while the witnesses can be released.
Conservative
The Chair Conservative Ed Fast
I'll reconvene the meeting. We're moving to clause-by-clause on Bill C-21.
Pursuant to Standing Order 75(1), consideration of clause 1 is postponed, so I'm calling clause 2.
(On clause 2)
There are three amendments proposed to clause 2. We'll do them in the order in which they fit.
Mr. Comartin, did you want to introduce amendment NDP-1?
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'd actually like the consent of the committee to withdraw it.
Conservative
The Chair Conservative Ed Fast
(Amendment withdrawn)
All right. We'll move, then, to amendment NDP-2.
Mr. Comartin, unfortunately, I'm going to be ruling it out of order.
NDP
November 25th, 2010 / 4:30 p.m.
Conservative
The Chair Conservative Ed Fast
All right. Is there consent that it be withdrawn? If there is, I don't have to make the ruling.
Conservative
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I am just pointing out that we do an enormous amount of preparatory work on these amendments, and then they are withdrawn. That's okay—
Conservative
The Chair Conservative Ed Fast
Well, I understand that, but each one of us as a member has the liberty to introduce amendments right at the meeting and also to withdraw them. When we hear from witnesses, sometimes our minds are changed. I believe we do have consent on the second NDP amendment.
We'll now move to Liberal amendment 1.
Ms. Jennings, are you introducing it?
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Yes, thank you.
I brought this amendment forward because clause 2 of Bill C-21 says very specifically that:
Section 380 of the Criminal Code is amended by adding the following after subsection (1):
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
Well, if one goes to section 380, subsection 380(1) talks about fraude.
The subsection of the Criminal Code says this:380. (1) Every one who, by deceit, falsehood or other fraudulent means…
I'm sorry. I'm reading with a magnifier because I can barely read this.
It continues:
…whether or not it is a false pretence within the meaning of this act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence…
If we go to subsection 380(2),
as you see, the heading is “affecting public market”.
Subsection 380(2) says:
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
That isn't covered by Bill C-21. I believe that it should be covered. In the previous session of the 40th Parliament, when this bill was originally tabled, we heard from witnesses who were victims, organizations, representatives of organizations representing victims, and law enforcement. I specifically asked if they believed that Bill C-21 covered stock manipulation, etc., which we find in subsection 380(2).
They all thought it did. When I informed them otherwise and actually read out clause 2 of Bill C-52, as I believe it was at that time, they were all surprised. They said they thought it should be very clear that this section on stock manipulation, etc., should be part of Bill C-21. That's the reasoning for bringing forth this amendment.
Conservative
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Once again, by wanting to set a minimum, we seem to be completely ignoring the fact that, when it comes to complicity, the provisions of the Criminal Code are extremely broad and, for a number of offences but particularly with fraud cases, they cover participants who can be at some distance from, and play a minor role in, the fraudulent operation.
Here is an example. Let us say that it is not the secretary who continues to send notices, to collect money and to make the fraudster's operation possible. Let us say that it is a broker who, in good faith, initiates activities for someone who decides to engage in fraudulent agiotage—that's the French word for this speculative kind of fraud. At the outset, he does not see that his client is involved in it. But he could still be charged because he did not get out of the agiotage operation quickly enough. I am sure that a judge would want to take that into consideration at the same time as he would sentence the main fraudster and anyone profiting from the agiotage to a lot more than the two years proposed here. Especially if the fraudulent speculation generated proceeds of more than a million dollars.
I see the same problem of injustice as I see in minimum sentences for any involvement, however minor, which is still an offence at the moment someone becomes aware that he or she is aiding the main player in committing the offence. That is what has to be understood when we set minimum sentences.
You design minimum sentences because you are thinking about serious matters and about the proceeds that offenders are getting from their illegal actions. But you forget that they have very often dragged people down with them, people working in good faith, but who have taken too long to realize that they ought to have gotten out of the situation.
Even with a sophisticated offence, like manipulating securities on the Stock Exchange, I am sure that you can see perfectly well that young brokers may have been dragged into something that they may not have gotten out quickly enough. But neither have they benefited from the main player's speculation. It seems to me that this is why we appoint judges who are supposed to be intelligent and independent so that they can listen to all the circumstances and decide on a sentence that is not only appropriate to the offence, but also appropriate for the victims and for the people who have been of only minor assistance to the principal player.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
I'd like to defer to Mr. Woodworth.