Paul MacKlin

[Criminal Code, October 24th, 2003]

Mr. Speaker, Bill C-338 proposes to amend the Criminal Code to specify that street racing must be deemed to be an aggravating factor when a court is sentencing an offender in relation to four offences. These offences are: criminal negligence causing death; criminal negligence causing bodily harm; dangerous driving causing death; and dangerous driving causing bodily harm.

Currently when performing the very difficult task of setting the appropriate and proper sentence, the courts must take into account the aggravating and mitigating circumstances of the offence and the circumstances of the offender. This is the law. Where the Crown or the defence or both believe that the sentence is not appropriate, each may appeal from the sentence.

For the many offences in the Criminal Code, there will be widely varying circumstances under which each offence might be committed.

Mitigating and aggravating factual circumstances, including any street racing, are already placed before a sentencing judge. Unless there is some compelling reason to specify that certain circumstances are aggravating, it is better not to multiply the instances where the Criminal Code spells out that a particular way of committing the offence will be an aggravating factor. In my view, we are not seeing any such reason emerging from decisions of the trial courts and the appeal courts with regard to the four offences when street racing is a part of the circumstances of these offences.

Bill C-338 is not proposing to alter the periods of imprisonment available to the courts for the four offences. I am in agreement that the available periods of imprisonment for these offences are already very serious.

The Criminal Code makes it an offence to cause death by criminal negligence. This is a very serious offence, which could be committed, for example, when driving a motor vehicle in a street race.

The crown prosecutor is required to prove that the accused's behaviour showed a “wanton and careless disregard for the lives or safety of others”, and that this behaviour caused the death. The maximum penalty for causing death is a period of life imprisonment. This is equal to the maximum penalty for manslaughter and the maximum penalty for impaired driving causing death.

For dangerous driving that causes death, the crown prosecutor is required to prove that the driving which caused the death was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might have been expected to be at that place. It is easier for the crown prosecutor to prove the elements of the dangerous driving offence than the elements for the offence of criminal negligence causing death. The maximum penalty for dangerous driving causing death is 14 years' imprisonment.

The maximum penalties for the offences of criminal negligence causing bodily harm and dangerous driving causing bodily harm are the same as the maximum penalty for impaired driving causing bodily harm. All are set at 10 years' imprisonment.

Without going into detail, I would simply observe that Bill C-338 would replace the discretion a court now has to impose a driving prohibition order, which would start after any period of imprisonment had been served with a mandatory order of driving prohibition.

I think there is logic to the present law, which gives the court discretion on whether to impose a driving prohibition order. If a court imposes a long period of imprisonment, the court may believe that there is no need to have the offender prohibited from driving at the point of release from imprisonment, which will be far in the future. In such cases, the offender will have been off the streets and away from the wheel for a very long time.

Also, I note that Bill C-338 proposes to put the street racing factor alongside the impaired driving provisions in section 255.1. Even if the bill were advisable, which I do not believe it is, the provision would more logically be placed within a new section 221.1, criminal negligence, and within a new section 249(5), dangerous driving.

In closing, I will say that unless we have a strong indication that the courts are not treating street racing as an aggravating factor for these four offences, restraint ought to be exercised in specifying that street racing become an aggravating factor.

[Committees of the House, October 23rd, 2003]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Justice and Human Rights.

Pursuant to its order of reference of Friday, September 19, 2003, your committee has considered Bill C-45, an act to amend the Criminal Code (criminal liability of organizations), and has agreed to report it with amendments.

[Criminal Code, October 8th, 2003]

Mr. Speaker, I would like to make a few comments on my hon. friend's commentary. I want to congratulate him on supporting this bill in principle.

He made some comments that were directed toward the enforcement of this bill and ultimately how we make it function within our market process. He is likely aware of the integrated market enforcement teams that are being set up by the RCMP as a process of trying to put together a system that will adequately enforce these measures with skilled people who are up to date in the technology of the day and the ways in which one goes about this.

With respect to funding, under that initiative there would be $8.1 million spent in this fiscal year, or at least designated for that purpose. In the subsequent year there would be $13.2 million and $17.5 million in each of the subsequent three years.

If the member has any concerns about the fact that we are prepared to put our money behind the enforcement process, I think we are definitely prepared to do so. Does the member think that this is the right approach?

[Business of the House, October 8th, 2003]

Madam Speaker, discussions have taken place between all parties, as well as the member for Churchill, concerning the taking of the division on Motion No. 197 scheduled at the conclusion of private members' business later this day. I believe you would find consent for the following motion. I move:

That at the conclusion of today's debate on Motion No. 197, all questions necessary to dispose of the motion be deemed put, a recorded division deemed requested and deferred to Tuesday, October 21, 2003, at the end of Government Orders.

[Criminal Code, September 29th, 2003]

Mr. Speaker, that is a very good question to raise. One part of the bill, which goes to the bottom line of the sentencing process, is very positive. That is the section that deals with setting out the aggravating circumstances that will be taken into consideration. These are very important. Sometimes we look at what factors are taken into consideration when someone is being sentenced for this sort of crime and generally and historically one might look at the reputation of the accused and how he or she has been seen in the community.

In the bill we turn that upside down and we say that it should not be taken into consideration. The clause states:

The court shall not consider as mitigating circumstances the offender's employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.

It is very important to ensure we bring to bear in the courtroom those things that we believe ought not to be considered as mitigating and diminishing sentences. It is important that we send the message, and we are sending a strong message in the bill through the doubling of some sentences and increasing others. We are being very clear and direct that we want to maintain the integrity of the market system in Canada and we will do everything that is reasonably possible to ensure that is so, to protect all of the citizens of the country.

[Criminal Code, September 29th, 2003]

Mr. Speaker, investor confidence is crucial to the life of Canada's capital markets and to our economy as a whole. American corporate scandals shook the credibility of global capital markets in 2001 and 2002. Multi-billion dollar accounting deceptions and other corporate scandals dominated international business media headlines during this period. Because of their far-reaching effect, these scandals have damaged investor confidence well beyond the American borders.

A survey conducted in 2002 revealed a dramatic drop in investor confidence following the collapse of WorldCom, with the majority of those surveyed believing that both the American and Canadian economies will continue to suffer as long as similar corporate misdeeds impact as they do on investor confidence.

In addition, a public survey in 2002 suggested that the majority of Canadians have lost confidence in the stock market and that Canadians show support for initiatives that are aimed at boosting financial transparency and stiffening penalties for those who transgress.

Currently, in partnership with provinces, regulators and law enforcement, the Government of Canada is working very hard to ensure the integrity of Canada's financial markets, although in the wake of recent American corporate scandals, the Government of Canada wants to make certain that this work will not only continue but is strengthened.

On September 30, 2002, the Speech from the Throne committed the Government of Canada to:

reviewing and where necessary changing its laws and strengthening enforcement to ensure that government standards for federally incorporated companies and other financial institutions remain of the highest order.

The Government of Canada has committed to constructing a response that is tailored to investor and law enforcement needs. One aspect of Canadian law that had to be addressed was criminal legislation dealing with serious capital markets fraud.

The government has come forward with legislative enforcement measures to deter the would-be perpetrators from committing serious capital markets fraud offences, to facilitate the gathering of evidence against those who have committed serious fraud offences, and to ensure that those who are convicted of such offences are punished appropriately.

I am pleased today to debate Bill C-46, an act to amend the Criminal Code, dealing with capital markets fraud and evidence gathering. This bill represents the government's response to the criminal law dimension to market misconduct, a very important step toward restoring investor confidence in our capital markets and in our economy generally. As members will soon hear, and which will become plainly obvious, those who engage in capital markets fraud will face a significantly increased risk of being caught, charged, convicted and punished.

The key to deterrence is greater certainty of detection and prosecution and the prospect of appropriately severe punishment. We can therefore also hope and expect that an enhanced criminal justice response to market fraud will serve to dissuade many who might otherwise contemplate such unlawful conduct.

I would like to turn to the IMETs part of the bill. First, to strengthen the national enforcement presence pertaining to serious capital markets fraud offences, budget 2003 included $30 million in funding to create up to nine integrated market enforcement teams, or what we refer to as IMETs. These are composed of RCMP investigators, forensic accountants, and federal prosecution service legal advisers and prosecutors in Toronto, Montreal, Vancouver and Calgary.

These teams would investigate serious Criminal Code capital market fraud offences that are of national significance and involve publicly traded companies whose actions have posed a genuine threat to investor confidence and economic stability in Canada. These teams will make use of existing Criminal Code provisions and those in new measures in Bill C-46 once the bill is passed into law.

Bill C-46 addresses four key areas in particular: first, new offences; second, sentencing measures; third, concurrent federal jurisdiction to prosecute certain offences; and fourth, enhanced evidence gathering tools.

Our review of the Criminal Code in the light of the American response to the crisis in investor confidence showed that we already have strong and effective laws to deal with capital markets fraud, including an effective fraud offence and offences of obstruction of justice and for filing a false prospectus and so on.

What we did find was that there appeared to be two gaps. Bill C-46 would effectively fill those gaps. In particular, Bill C-46 would create new offences for, first, prohibited insider trading and, second, employment related intimidation aimed at deterring corporate insiders from reporting illegal conduct and assisting the authorities.

When insiders of corporations use their special access to material inside information that is not available to other investors in order to benefit themselves, the investor confidence that is required in order to sustain the credibility of our vital capital markets can be seriously undermined. This activity can cause significant economic harm to individual investors, firms and the integrity of the Canadian economy as a whole.

Improper insider trading is currently prohibited under the provincial securities laws and under the Canada Business Corporations Act. However, the use of the criminal law is a necessary additional instrument for deterring this kind of corporate malfeasance because of its symbolic value and because of the more severe penalties available.

The addition of an offence to the Criminal Code to prohibit and punish improper insider trading as a criminal offence would provide an additional tool to deal with those cases that merited a more severe response and ultimately would help stabilize investor confidence.

Members may recall how insiders who disclosed illegal conduct played an important role in uncovering the recent American scandals. Our Criminal Code does contain certain offences that prohibit intimidation, which basically means trying to stop someone from doing anything they would otherwise have a right to do, such as talk to the police, by threatening them with violence or harm. The Criminal Code also prohibits attempts to obstruct the course of justice, which relates to interference with investigations and the prosecution of crime.

Threats and actions directed at a person's employment, done with the purpose of preventing them from cooperating with law enforcement or to punish them where they have done so, are not adequately covered by these existing offences.

Once again, the Government of Canada has responded. The addition of a targeted offence in Bill C-46 will help to deter this kind of inappropriate conduct on the part of employers and will consequently help encourage insiders to cooperate with law enforcement. This new offence will send a strong message that this form of intimidation will not be tolerated. I would like to point out to members that this offence will apply to efforts to stop employees from speaking to a law enforcement body about any kind of illegal conduct, not just securities fraud.

Encouraging those with knowledge of wrongdoing to cooperate with the authorities will facilitate the detection of capital markets fraud and other forms of corporate malfeasance, as well as aid in the enforcement of federal and provincial offences under securities regulatory laws and other laws governing corporate actions.

Now I would like to talk about the sentencing that the bill encompasses. In keeping with the Government of Canada's commitment to ensuring that those convicted of capital markets fraud and white collar crime in general are punished appropriately for their wrongful conduct and the harm they cause to Canadians, Bill C-46 contains significant sentencing proposals.

In addition to the 10 year maximum sentence for the proposed insider trading offence and the 5 year maximum sentence for the proposed employment related intimidation offence, Bill C-46 also would increase the maximum sentence for fraud from 10 years to 14 years and double the maximum sentence for fraudulent manipulation of the stock market transactions from 5 years to 10 years. It should be noted that a maximum prison term of 14 years is the highest term of imprisonment in the Criminal Code short of imprisonment for life.

These sentencing initiatives therefore raise the maximum sentences for capital markets fraud to a level that recognizes their serious nature and crippling effects that they can have on our economy.

In addition, as a direction to our courts, Bill C-46 includes a codification of aggravating and non-mitigating sentencing factors for fraud and other market related offences, ensuring that the sentences the courts hand down for these offences will reflect the seriousness of the economic and social damage that such offences can inflict on our society. The government believes these codified factors will also improve the sentencing of white collar crime in general.

Let me deal with the area of concurrent jurisdiction. The partnership is a key and breathes life into Bill C-46. As such we propose to use concurrent prosecutorial jurisdiction over fraud to supplement provincial jurisdiction and provincial resources in regard to the major cases of capital markets fraud that are the focus of integrated market enforcement team initiative.

Federal involvement would be limited to a narrow range of cases that threaten the national interest in the integrity of capital markets.

Let me be clear. We do not intend to replace or overtake provincial prosecutorial jurisdiction but rather to compliment it. To this end officials within the Department of Justice have been engaged in a dialogue with provincial prosecutorial authorities on the development of joint protocols that would protect provincial jurisdiction while allowing for supplementary application of federal prosecutorial resources where necessary and desirable.

To ensure proper coordination, the Government of Canada will work with the provinces to establish prosecution protocols that will ensure a coordinated and effective implementation of the concurrent jurisdiction. The concurrent jurisdiction proposal responds to an immediate national concern of investor confidence in Canadian financial markets. Through effective partnerships with our provincial colleagues, we can strengthen investor confidence and bring those who threaten it to justice. I look forward to continuing this relationship.

We also have to look at how we gather evidence in situations of this type. I would turn to the provisions of Bill C-46 that relate to this evidence gathering.

In the Speech from the Throne the government committed itself to creating better tools to enhance the evidence gathering capabilities of investigators. Bill C-46 does just that with Criminal Code amendments that create production orders. Production orders are similar to search warrants. Whereas a search warrant allows police to search a certain place for evidence, a production order compels a person to produce the relevant information to the police.

Although this investigative tool is new to the Criminal Code, it already exists in Canadian law, notably under the Competition Act and in limited circumstances under other statutes. Further, it could also be characterized as a codification of current practices. For example, today when a police officer enters a bank with a warrant to seize records, he does not usually shut down the bank to get those records. Nor will he seize the bank's computer system.

What generally happens is that the holder of the information sought in the warrant will generally produce that information to the police himself. The reason for this is twofold: first, it is more convenient for the bank, since its business operations are not being interrupted; and second, it is more cost effective and less time consuming for the police.

The production orders in Bill C-46 have been introduced in the context of the capital markets fraud, however, as crafted they will not only apply to capital market investigations but also to all Criminal Code offences where a regular search warrant could be obtained. Because the new production orders have this broad scope, we thought it was necessary to include the same judicial safeguards required by the Criminal Code search warrant provisions.

Law enforcement agencies and crown prosecutors have been asking for a new investigative tool for some time and with the proliferation of the Internet and the widespread adoption of new communications technologies, the timing is right for this form of investigative tool.

The production orders will solve a number of nagging issues for investigators including extraterritorial searches and timing issues. Under these new orders, persons who have possession or control of documents, data or information will have to produce that information whether it resides in Canada or abroad. Thus, as long as they have possession or control over the relevant information, they will be required to produce it no matter where it is located. This solves the problem that has in part been created by inexpensive overseas data warehousing.

Second, the new production orders will be time sensitive so that the third party served with the order will either have to produce the information within the time specified in the order or report back to the court within the specified time as to why he or she cannot comply. This solves the problem of the inherent nature of informal arrangements which is they are informal and they often lack specific mechanisms such as timing mechanisms.

In some cases police have had to wait for up to a year to obtain information from a third party holder of that information. This bill introduces two types of production orders to the Criminal Code to enhance the general evidence gathering capabilities of the investigators. The general production order will require a person other than the individual under investigation to produce documents, or data or to create a document based on the existing documents or data and produce it.

For example, a production order served on a bank could require the bank to compile existing but non-related information on a client and give it to the police. Before issuing the order, the judge or justice must be satisfied that there are reasonable grounds to believe an offence has been committed, that the specific documents or data will afford evidence relating to the commission of the offence and that the recipient of the order has possession or control of these documents or data. These are the same basic judicial safeguards as required by the existing Criminal Code search warrant provisions.

The second type of production order is the specific production order. It has been designed to be a first step investigative tool and is limited to specific types of information for which there is a lower expectation of privacy. A judge or justice will have to be satisfied that there are reasonable grounds to suspect that the information will assist in the investigation of an offence. This type of order, with a narrower scope, would only apply to financial institutions and other organizations specified in the legislation.

Therefore, the general details relating to bank accounts such as the name of an account holder, or type and status of an account could be obtained through a specific production order.

I am pleased to have spoken to this bill today. The bill reflects the government's criminal law response to serious securities fraud that poses real risk to investor confidence in the stability of our markets and economy.

[Justice, September 29th, 2003]

Mr. Speaker, I believe the Supreme Court has been very clear and it said that it was lawful and proper for us to use the dangerous offender category.

What it did set out for the courts were ways and means of approaching this and how to deal with it within the court system. We believe in that. It is very important, vital, that we use the dangerous offender category to protect our citizens.

[Justice, September 29th, 2003]

Mr. Speaker, the Criminal Code is composed of a mosaic of ways in which we deal with our criminals. Within that, the dangerous offender category has been very helpful.

What the Supreme Court said is that our approach to dangerous offenders is lawful and proper, and we will continue to use it.

[Amendments and Corrections Act, 2003, September 26th, 2003]

Almost everyone is a Liberal.

[Social Condition, September 25th, 2003]

Madam Speaker, I want to thank the hon. member for Sherbrooke for sharing with the House his thinking behind the motion he has brought before us.

I wish to share with the House some of our own thoughts on all the subsidiary issues that underlie the broad question of including social condition as a prohibited ground of discrimination. I am able to do so at this time because the Department of Justice is already in the process of comprehensively reviewing this matter to ensure a responsible and considered response can be made.

The importance of ensuring that Canada continues to have an effective and responsive human rights system cannot be overstated. The government's commitment to this goal will not be undermined by hasty or shortsighted amendments, the effect of which could be to overburden the commission or to run counter to the human rights progress we have worked so hard to achieve.

Social condition without the proper constraints or study could have that effect on our human rights scheme. One thing the hon. member has intimated is that the purpose of the motion before the House is related to protecting from discrimination only those individuals of a lower or disadvantaged socio-economic status. Yet, the meaning of the term “social condition” is by no means that apparent. It implies no obvious limitations or constraints. Its definition is completely open to a variety of wide-ranging and potentially problematic interpretations.

If social condition is added in this ad hoc way, as is being suggested in the motion, a number of unintended and unforeseen consequences could ensue. I have identified three specific potential drawbacks of including social condition in this way and I would like to share them with the House.

These would be first, to possibly result in a counterproductive application of the Canadian Human Rights Act to benefit already advantaged groups that do not require our protection; second, to perhaps be so broad and malleable as to overwhelm the system; and third, to potentially be so over-restrictive as to preclude protection for the very people it was meant to protect.

Turning to the first potential situation that social condition protection could be misused or abused by already advantaged groups, the experience of Quebec is most enlightening. As the hon. member would know the Quebec charter has, since its inception in 1975, included condition sociale as a prohibited ground of discrimination. However the item was never debated or questioned on the merits at the time of its adoption.

Thus, it was left to the courts to interpret social condition. This resulted in some surprising outcomes for individuals bringing their complaints of discrimination on the ground of social condition until the Quebec Human Rights Commission intervened with guidelines in 1994.

Prior to the guidelines, social condition was interpreted by the judges to include, among other things, being a judge. A doctor's level of income and a for profit hospital were even found to come under the umbrella of social condition. In contrast, characteristics such as being in receipt of social assistance, being a full time student, being pregnant, having a psychiatric record and a history of alcoholism and unemployment due to a strike were not found to be social conditions.

Is this the result the House wishes to support in the motion? I would think not. Yet if the Canadian Human Rights Act is amended in the ill-defined and unconstrained way proposed by the motion, similarly counterproductive interpretations of the Canadian Human Rights Act could result.

For example, the addition of social condition without appropriate limits on its interpretation and application could conceivably be used to challenge our progressive tax system because there exists a higher marginal tax rate for high income earners. Our system of taxation is designed to recognize that lower income earners cannot and should not bear the same burdens on the means of their survival as those with a much larger income.

Should the addition of social condition in the name of human rights and equality reverse this? Should social condition mean that everyone receives social assistance as an income supplement whether it is needed or not?

The Canadian Human Rights Act and the Canadian commitment to combating discrimination seek to protect vulnerable and disadvantaged groups from discrimination, not to reward or profit individuals because they belong to already advantaged groups.

The second potential consequence of including social condition without definition or appropriate constraints is that social condition could be interpreted so broadly as to overwhelm the human rights system and leave open to possible challenge a host of valued social programs meant to assist the very lower status socio-economic groups for whom the protection is surely intended.

Considered broadly, what is a social condition? Could not the status of being discriminated against be a social condition itself? Why then would we need grounds such as family status, marital status, disability, sex, race or any other in the act? It could also conceivably cover any other social status, including being a prisoner, having a criminal record, being unemployed. The list is almost endless.

It may be that we as the people of Canada decide that we wish to broaden the scope of the Canadian Human Rights Act or to explore other approaches to discrimination protection. In any event, decisions as important as these must always be made in a considered and informed manner, which is clearly not envisioned in this motion.

The Canadian human rights system does not possess unlimited resources and the potential increase in cases that could be brought with the addition of social condition, left undefined in this manner, could have a serious impact on the administration and enforcement of our Human Rights Act as a whole.

Interpreted broadly enough, challenges could be brought against any of our social programs that make income distinctions, even if these distinctions are made for the benefit rather than the detriment of lower income individuals. Social legislation by its very nature often makes distinctions on the basis of income and employment.

The complete loss of government control over choosing where public resources should be allocated in the public interest is an unacceptable result for a democratic society.

The third possible consequence of adding social condition in an undefined fashion is at the other end of the scale: an interpretation that could be so narrow that the potential benefit of its inclusion would be lost.

Consistently, social condition is often raised in the context of poverty and a ground through which poor people can be protected from stereotypes and discrimination. However is this, or should this be, the only factor in considering an individual's social condition? If so, why not simply include a ground of discrimination such as being in receipt of social assistance or source of income? A number of the provinces have done so, but is this sufficient in the federal sector?

Does this mean we want to exclude protection for the working poor who do not receive public assistance, or for the unemployed? Should not then employment status or nature of one's employment also be a factor? And what about part time, seasonal, temporary, contract and other non-standard workers who might well face barriers those who are employed full time do not?

These examples all raise the question of whether the source or level of income is enough or whether a broader notion of social condition may be necessary.

The Department of Justice has already begun a concerted study on the issue of social condition as part of its larger review of the Canadian Human Rights Act as a whole. As members can see, our thinking is already quite advanced in this area.

It is clear that choices need to be made as to the scope, operation and definition of a ground such as social condition. However, these choices must always keep in mind the overarching objective of the act as a refuge of the disadvantaged and disenfranchised, one that is accessible, responsive and efficient. Only clear directions in the law can satisfy this objective.

As a House, we should not support the motion as it stands. To do so in this case would be to abdicate our responsibilities as law makers at the expense of the very people the hon. member surely seeks to protect.