Mr. Speaker, I rise to comment on Bill C-208 which would amend the Access to Information Act to add an infraction to that act.
More specifically, the bill states that a person who with intent to deny a right of access under this act destroys or alters a record, or falsifies a record or makes a false entry in a record or does not keep required records is guilty of an indictable offence and may be imprisoned for up to five years or fined up to $10,000 or both.
Let me begin my comments by stating clearly that I support the general goal of this bill and I commend the hon. member for Brampton West—Mississauga for having introduced it.
I have some experience with respect to access to information. I dealt with the act in my former capacity as mayor of the municipality, chairman of the hydro-electric commission for Kitchener—Wilmot and especially as chairman of the Waterloo regional police.
The act as it now stands makes an offence of obstructing the work of the information officer and commissioner and provides a penalty for that offence. The act also authorizes the commissioner to disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada by any officer or employee of a federal government institution.
Certain events that occurred during the Somalia and the blood inquiries have drawn public attention to the fact that the Access to Information Act contains no penalty for this sort of action. One can argue then that these events clearly illustrate and underscore the need for an infraction in the Access to Information Act.
There is a provision of general application in the Criminal Code. Section 126 of the Criminal Code states:
Every one who, without lawful excuse, contravenes an act of Parliament by willfully doing anything that it forbids or by willfully omitting to do anything that is required to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
It could be argued that section 126 of the Criminal Code might apply to the situation of somebody deliberately destroying a document in order to thwart the access act, in so far as a destruction would result in the person willfully omitting to do anything that the act in this case requires to be done.
This brings me to an interesting point which is also my main concern with respect to Bill C-208.
Section 126 creates an indictable offence, which is the most serious type of offence in the Criminal Code. The section 126 offence carries a maximum penalty of two years. I believe that the seriousness of an indictable offence in section 26 is one of the reasons it might be necessary to add a specific offence to the Access to Information Act.
In this cases, the specific offence of deliberately destroying documents subject to the Access to Information Act should not be quite as serious as an indictable offence with a maximum of two years imprisonment.
This is not what Bill C-208 proposes. Rather, it proposes to create a specific offence in the access act. But this specific offence not only would not carry a lesser maximum penalty than the one attached to the offence in section 126, it would in fact carry a heavier penalty, a maximum penalty of five years.
It is important to outline that the Criminal Code provides offences in three types, summary convictions, indictable offences and hybrid offences that the crown can elect to prosecute either as an indictable offence or as a summary conviction offence. The summary conviction offence carries the lightest penalties and the indictable offences, of course, carry the heaviest. With hybrid offences the attached penalty depends on the procedure selected by the crown.
An important point is that when an accused is prosecuted by indictment he can choose to be tried before a judge and jury, which can be a very slow process. In addition, the accused is entitled to a preliminary inquiry when the offence is an indictable one.
I understand the hon. member wants to mark the seriousness of the offence by making it an indictable offence. However, it may also be counterproductive if it results in the crown not proceeding and prosecuting with that offence because in light of the particular circumstances of the case it is felt that it would not be worth the costs and efforts of the justice system, or when they view the penalty as disproportionate to the crime, taking into account the circumstances of the offence and the motives of the offender.
I would also wonder how much benefit and how much additional protection society would get from sending the offender in this case to jail.
Let us look for a moment at the list of some of the Criminal Code offences that are hybrid, and for which the penalty would be lighter than a straight indictable offence when the crown proceeds by summary conviction: for example, criminal harassment, more commonly known as stalking, uttering threats, assault, assault causing bodily harm, unlawfully causing bodily harm, assaulting a police officer, and sexual assault.
These offences are serious offences, but making them hybrid allows some discretion for adjusting the procedure and the penalty to the circumstances of the offence.
I would argue that destroying documents, while undoubtedly serious, is not more serious than assaulting a police officer.
I think a comparative study of Criminal Code offences should be carried out in order to classify a specific offence of destroying documents in the access act and determine an appropriate maximum penalty in this case.
In conclusion, I view the creation of a penalty for deliberately destroying documents to thwart the Access to Information Act is an important issue to be looked at in the context of an overall review of the access legislation.
I reiterate that I support the goal of Bill C-208, which is to add to the access act the penalty for deliberately destroying documents that are subject to that act.
The hon. member has worked hard on this, but I am unable to support the proposal of Bill C-208, which is to create a penalty that would be a straight indictable offence with a maximum penalty of five years in jail. This, in my view, is simply too heavy a penalty, and providing for such a serious offence might be counterproductive in relation to the objectives.