Brent Rathgeber

[Investigative Powers for the 21st Century Act, October 27th, 2009]

Mr. Speaker, it is certainly an honour for me to speak in favour of BillC-46, the investigative powers for the 21st century act which aligns with the government's priority of getting tough on crime, including the Internet and other computer crimes. It also responds to many of the issues surrounding organized crime.

The justice committee has undertaken a comprehensive study of organized crime, and at every venue and at every hearing we hear about the need for the police to have the exact type of tools that BillC-46 provides.

With the amendments put forward in Bill C-46, which amends the Criminal Code among other acts, including the Mutual Legal Assistance in Criminal Matters Act and the Competition Act, Parliament would provide police officers with more precise and less cumbersome investigative techniques which they need and have been asking for in the 21st century to do their work in a more effective and efficient manner.

Crime is becoming more sophisticated. Criminals are becoming technocrats and police need to keep up with technical advances that organized crime has been developing.

In addition to updating certain existing offences that are facilitated by the Internet, including child sexual exploitation, Bill C-46 proposes to create new production and preservation orders to address today's computer and telecommunications environment.

Investigative powers must be tailored to modern technologies. Investigations may be compromised if they are not. In addition, these changes assist in ensuring that established privacy protections put in place to protect the rights of all Canadians are maintained in the face of these ever-developing new technologies.

Bill C-46 would update the existing dial number recorder warrant, which currently allows police to obtain data relating to dialed telephone numbers. The proposed transmission data recorder warrant would allow police to obtain data in relation to the routing of an electronic communication, including communications by email or by cellphone in real time. Police would also be able to obtain historical data of the same kind under such a production order.

The existing requirements for obtaining dialed telephone number data would continue to apply to the data obtained under the transmission data warrant. As with the existing warrant, the updated powers would explicitly exclude access to the content of the message.

The existing tracking warrant would similarly be updated to provide for both a production order for tracking data and a warrant for the real-time collection of that tracking data. These updates would create a two-warrant system, which would better recognize the different expectations of privacy that persons have in relation to their personal location and that of their vehicles, transactions and other things.

Computer data by its very nature is volatile. As a result, there is a risk that it will be lost in the time that it takes for police to get a warrant or order to obtain that type of evidence. Police need a way to ensure that computer data necessary to an investigation is preserved during this time and during the fullness of the investigation. The new preservation demand and preservation order is simply a do not delete order, requiring the custodian of the computer data to ensure the preservation for a limited period of time, and of specific data related to a specific communication or to a specific subscriber. This data will only be preserved for the purpose of conducting a specific investigation.

It is crucial to understand that any disclosure of information under all of these legislative proposals would be pursuant to a judicial authorization. That protection is not being changed by these amendments to the Criminal Code.

We need to ensure that pursuant to a judge's order, investigators can obtain the kind of information they need, but no more and nothing else. We must ensure that any intrusion into privacy only goes as far as is necessary. These new measures guarantee privacy with precision and strike the appropriate balance, I submit, between law enforcement needs and privacy protections.

The proposed legislative amendments are required to meet our domestic imperatives. However, they would also allow Canada to ratify the Council of Europe Convention on Cybercrime and its additional protocol on xenophobia and racism. In the international context, this treaty is not only one of its kind and will allow Canadian law enforcement to avail itself of the international cooperation that the protocol permits.

I can assure the House that the legislative proposals put forward in the bill would not only contribute to getting Canadian law enforcement officers the tools they need in the 21st century but they also demonstrate Canada's commitment to cross-border and hemispheric security in the Americas, and assist in meeting international expectations for Canadian participation in the global fight against cybercrime.

Lawful access is not about eavesdropping on private communication, or monitoring the web surfing and emailing habits of ordinary Canadians. It is about ensuring that law enforcement and national security agencies have the technical and legal ability to keep up with new developments in information and communications technology.

New technology is a useful and powerful tool. However, in the hands of criminals, terrorists and organized crime, this same technology can be used in ways that threaten public safety and national security. That is why the Government of Canada is committed to updating Canada's laws to keep pace with these ever emerging technologies. While Canada was one of the first countries to enact criminal laws in the areas of computer crime, there have been no substantial amendments since the 1990s. Technology has evolved considerably since then and Canada's laws have to keep pace.

These increasingly complex technologies are challenging conventional investigative methods and criminals are taking advantage of this situation using sophisticated technology to help them carry out their illicit activities that threaten the safety and security of Canadians. To overcome these challenges, legislative tools such as this bill and amendments to the Criminal Code must evolve so that law enforcement can effectively investigate criminal activities while ensuring that Canadian's privacy laws and civil liberties are always respected. The proposed legislation will update certain existing Criminal Code offences and investigative powers as well as create new powers to meet the demands of today's technological cybercrime environment.

The proposed legislation will accomplish five things. First, it will update the current Criminal Code provisions to allow police to obtain transmission data, also known as traffic data, that is received or sent via the telephone or Internet. Second, it will require telecommunication service providers to preserve, for a limited period of time, data related to a specific communication or subscriber, if that information is needed for the investigation of an offence. Third, it will make it a specific offence for two or more persons to agree to arrange to commit an offence against a child by means of telecommunication. Fourth, it will modernize the current tracking warrant provisions to better recognize Canadians' expectations of privacy. Fifth, it will update the Mutual Legal Assistance in Criminal Matters Act so that the proposed new investigative powers in the Criminal Code are accessible to Canada's treaty partners.

This bill deals with data preservation and not data retention. When requested to do so through a preservation order, ISPs would only be required to preserve specific data already in their possession with respect to a particular suspect. Data preservation would ensure that volatile information vital to an investigation was not deleted before the police were in a position to access the specific data by way of a judicially authorized search warrant or a production order. These proposed amendments would not require ISPs to retain data relating to all of their customers' Internet activities.

Privacy will be protected by these amendments. The government is strongly committed to maintaining the rule of law in all of its legislation. None of the lawful access tools such as production orders, preservation orders, interception orders and search warrants can be obtained in the absence of lawful authority. A person's reasonable expectation of privacy will continue to guide how the Canadian government operates and how its legislation will be enforced.

In addition, the government will ensure that such authority will continue to be exercised, bearing in mind privacy and human rights contained in the Canadian Charter of Rights and Freedoms and the Personal Information Protection and Electronic Documents Act. The issuance of warrants will continue to require judicial authorization. No lawful access, production orders, preservation orders, interception orders, or search warrants can be obtained in the absence of lawful authority.

It is with a view to maintaining the privacy of Canadian citizens and keeping up with the sophistication of the new breed of high-tech criminals that I ask all hon. members to support Bill C-46.

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 26th, 2009]

Mr. Speaker, I listened to the member very carefully. He talked about getting to the root of crime, and I do not disagree that that is part of the equation, but I did not hear him talk about victims. And of course, on this side of the House, we are very concerned about victims. We certainly want to provide support to those victims.

My specific question for the member is this. What do we say to victims who have had their house broken into, their personal possessions rifled through, their property stolen, and then they find out that the perpetrator served the sentence inside his or her own house, under an order of house arrest?

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 26th, 2009]

Mr. Speaker, I thank my colleague for his enlightening speech and the thought he put into the role of conditional sentencing in our justice system and its limitations with respect to the types of convicts and persons who have come into the criminal justice ought to have it apply to them.

I know he is a lawyer, as am I, and relying on his legal experience, could he provide some comment, anecdotal or otherwise, as to situations where perhaps this process has not worked out properly and, more specifically, if he could comment, based on his experience as a lawyer, as to how this bill fits into the government's overall law and order strategy.

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 20th, 2009]

Mr. Speaker, I thank the member for his intervention although I do not entirely understand his question.

With respect to discretion, it is our experience, based not only on the study of conditional sentences but on proposed amendments to the Criminal Code generally, that judicial discretion has not worked in the interests of the Canadian public. The Canadian public has lost faith and confidence in the judicial system when they see individuals who have been convicted of serious crimes, crimes against individuals, such as assaults and arson, sentenced not to a period of incarceration but to a conditional sentence, often sentenced to house arrest where they are able to serve their sentence in the comfort of their own home with their big screen TV and library of CDs and DVDs.

I would suggest that this has nothing to do with ten percenters or slogans. It has to do with bringing the justice system into disrepute. I would suggest that these types of conditional sentence do that and that Bill C-42, when passed, will restore confidence--

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 20th, 2009]

Mr. Speaker, I have spoken with many Canadians in my role as a member of the justice committee and they have certainly indicated their outrage at these types of sentences

Why do the members opposite take a differing view? I guess I am not in the best place to answer that but, as my colleague, the member for Edmonton—Strathcona, seemed to indicate, issues with regard to the individual's background and perhaps a disadvantaged background, in some people's view, are more relevant and ought to be given priority in sentencing over the damage caused to individuals and the rights of victims and, most important, law-abiders. I disagree with that. The member will need to have that debate with someone who shares that view.

However, with respect to rehabilitation, the hon. member for Oshawa is quite right. Serial property offenders are very prevalent in cities. In Winnipeg, Vancouver and in my home city of Edmonton we have individuals who have 10, 20 and sometimes 50 convictions for property crimes and rehabilitation appears to be not within their sights. For individuals such as those, I would suggest that deterrents, both specific deterrents to that individual requires a period of incarceration, but also general deterrents.

People who read the papers and watch the six o'clock news need to know that individuals involved in serious and serial property crimes who have proven they are probably beyond rehabilitation by the serial nature of their activity will be spending a period of time behind bars and that incarceration awaits anyone else who might follow in their footsteps. Therefore, both specific and general deterrents are served when the House approves these amendments.

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 20th, 2009]

Mr. Speaker, the member is correct. Earlier on in my legal career I did practise criminal law, primarily as an ad hoc prosecutor but also as a criminal defence lawyer from time to time.

In answer to her question, it is clear to me and certainly clear to the members on this side of the House that the rights of law-abiders ought to be given precedence over the rights of lawbreakers.

With respect to what she suggested are minor offences, break and enter and theft over $5,000, I would ask her if she has ever been the victim of a property crime. I have been and it is very invasive and intrusive for an individual to come into our home when we are home or even if we are not home and rummage around and go through our personal effects looking for whatever might be of value that they might be interested in, such as CDs, DVDs, big-screen TVs. It is very invasive to have an individual come into one's homes and cause damage and steal.

The short answer to her question is that the bill would address what Canadians are telling us, which is that the rights of victims and law-abiders require precedence over the rights of those who break the law.

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 20th, 2009]

Mr. Speaker, I certainly enjoy the members interventions, both in the House and in the justice and public safety committees on which we both serve.

The hon. member will know that there is an act of this Parliament called the Youth Criminal Justice Act. It is part of the Criminal Code but separate and distinct from the Criminal Code and it applies to individuals who run afoul of criminal court procedures but have not yet reached the age of majority, which is 18 years. Nothing in the bill affects any provisions of the Youth Criminal Justice Act, so he need not be concerned.

[Ending Conditional Sentences for Property and Other Serious Crimes Act, October 20th, 2009]

Mr. Speaker, it is a pleasure for me to rise today to speak at second reading of Bill C-42, which would further and severely restrict the availability of one of the most innovative but certainly controversial elements of our sentencing law, the conditional sentence of imprisonment.

Before describing the key provisions of the bill, please allow me to take a few moments to discuss the origin, history and rationale for conditional sentencing.

In June 1994, Bill C-41, Canada's first comprehensive reform and modernization of sentencing law and procedures since 1892 was introduced into this very House of Commons. Among its many elements was the creation of the conditional sentence of imprisonment. What this meant was that for a sentence of imprisonment of less than two years a court could and may order that it be served in the community under certain conditions and under supervision. It could only be done under the statutory conditions, such as the court being satisfied that the offender could serve the sentence in the community without endangering the population at large.

In other words, the conditional sentence was aimed at low-risk offenders sentenced to a provincial reformatory for a period of time of two years or less.

When Bill C-41 was tabled, Canada was in the midst of an unprecedented increase in the growth of prison populations, both provincially and federally. The federal inmate population, that is those serving periods of sentences of two years or more, was growing at twice the average long-term rate, with a 21.5% increase in the number of federal prisoners from 1990 to 1995. During that time, federal correctional costs exceeded $1 billion for the first time.

Canada's incarceration rate of 130 prisoners per 100,000 citizens was the fourth highest in the western world, which was quite alarming. Therefore, in the 1995 budget the then minister of finance for the then Liberal government had urged federal and provincial ministers responsible for justice to develop strategies to “for containing the growth of the inmate population and the associated corrections cost therewith”.

The Speech from the Throne in 1996 promised that the federal government would develop alternatives to incarceration for low-risk offenders, while focusing the more expensive “correctional resources” on the high-risk offenders.

This direction resulted in the establishment of a multi-year federal-provincial-territorial process called “The Corrections Population Growth Exercise”. Bill C-41, as it was introduced in that Parliament, and the conditional sentences in particular were seen as key to Canada's response to the significant growth in the number of prisoners.

A special study of the impact of conditional sentencing on prison populations was conducted by the Canadian Centre for Justice Statistics in 2001. In the words of highly noted and renowned Professors Julian Roberts and Thomas Gabor of the University of Ottawa, in a 2002 article in the Canadian Criminal Law Review, the results reveal:

—that conditional sentencing has had a significant impact on the rates of admission to custody, which have declined by 13% since its introduction. This represents a reduction of approximately 55,000 offenders who otherwise would have been admitted to custody.

In a subsequent article published in the British Journal of Criminology, Professor Roberts, by this time at Oxford University, described conditional sentences as leading to the most successful decarceration exercise in the history of common law sentencing reform.

While the availability of conditional sentences arguably achieved the policy of restraint in the use of incarceration, it did so at considerable cost to the public faith in sentencing and the sentencing process.

Controversy has surrounded the conditional sentencing regime since its introduction. The sentence is seen by some as being too soft a disposition for offenders who are custody bound because it is no more severe or intrusive than a sentence of probation. As the legislation reads, the differences between probation and a conditional sentence are barely noticeable. The courts, moreover, may be unwilling to hand down conditional sentences in most cases because of that very perception, that if probation would be an appropriate sentence then the conditional sentence is probably inappropriate.

Some critics of conditional sentencing go so far as to say that the stated goal of conditional sentences, which was to reduce incarceration rates, had failed due to the problems it presented to the judiciary in properly applying conditional sentences. In fact, there is a series of appellate jurisprudence on conditional sentencing, and I will not give a law lecture today, but I invite any hon. members who are interested in the courts struggling with conditional sentences to read the Supreme Court of Canada's decision of 2000 in R. v. Proulx.

However, conditional sentences have been appropriately used in many cases, but there have been too many examples of a failure by the courts to balance the objectives of denunciation and general deterrence with the desire to rehabilitate an offender.

Due to legislation that allowed for those individuals convicted of serious offences to receive conditional sentences such as house arrest, judges have been handing down sentences all too frequently. This practice has caused an enormous loss of confidence in the judicial system by the public. We are here to serve the public and when the public loses confidence in the administration of justice, all hon. members ought to be concerned. The answer to this problem is to give judges guidance in sentencing matters.

There has been more than one legislative attempt to do so and to provide greater guidance to judges who are considering a conditional sentence. Members who have been here longer than I will recall Bill C-9 introduced by this Conservative government on May 4, 2006, which ultimately passed on May 31, 2007. However, sadly, it did not pass unamended.

The bill, as it was originally written, would have ensured that conditional sentences like house arrest would not be allowed for serious and violent crimes. However, sadly the bill was amended by the opposition parties in the justice and human rights committee. The amendments preserved conditional sentences for crimes such as possession of weapons for dangerous purposes, kidnapping, arson and impaired driving causing bodily harm and death.

Criminals who commit these crimes should be punished appropriately and, in my view, serve their time in prison. By restricting these crimes from conditional sentencing eligibility, Canadians will have a justice system that imposes sentences that fit the severity of the offence, properly deters serious offences and helps keep our streets safe.

With that history lesson, it brings me to Bill C-42, the bill which under consideration before the House this afternoon. The bill would add new, clear provisions to the conditional sentencing sections of the Criminal Code to ensure once and for all that conditional sentences would not be available to individuals who committed serious violent and serious property crimes.

The proposed reforms would ban the use of conditional sentences for the following: offences for which the law prescribes a maximum sentence of 14 years or life; offences prosecuted by indictment and for which the law prescribes a maximum sentence of imprisonment of 10 years that result in bodily harm, involve the import/export, trafficking and production of drugs or involve the use of weapons.

It would also ban the use of conditional sentences for the following offences when prosecuted by indictment: prison breach; luring a child; criminal harassment; sexual assault; kidnapping and forceable confinement; trafficking in persons for material benefit; abduction; theft over $5,000; auto theft; breaking; entering with intent; being unlawfully in a dwelling house; and arson for fraudulent purpose.

It is expectation of our government that when this legislation comes into force the conditional sentencing regime will provide the correct equilibrium between the punitive and rehabilitative objectives of sentencing of low risk and less serious offenders.

In doing so, it should provide improved public confidence in the sanction and in the criminal justice system generally. It will send the correct message to both criminals and the law-abiding public at large that those who commit serious and violent crimes will no longer be entitled to conditional sentences such as house arrest.

Imagine an individual being convicted of arson and being able to serve the time in the comfort of that person's own home. It is barely imaginable. However, after the passage of this bill, this misguided sentencing practice will no longer occur in Canada.

On this side of the House we do not believe that house arrest is a suitable punishment for serious crime. Canadians I have spoken to do not believe so, either. Too many criminals, in my view, should never have been given conditional sentences in the first place. Moreover, too many convicts have breached the terms of those conditional sentences.

The solicitor general of Saskatchewan reports that 39% of criminals sentenced to house arrest were returned to jail for breaching the conditions of their sentences. Statistics Canada reported in 2006 that over 11,150 criminals were serving conditional sentences, 2,791 of whom were convicted of violent crimes, crimes against a person, 3,619 were convicted of property crimes and 2,062 were convicted of drug trafficking.

In my view and in the view of my colleagues on this side of the House, there are too many cases where individuals convicted of serious and violent crimes are serving conditional sentences. Criminals who commit these crimes should be punished appropriately and serve time in prison. By restricting these crimes from conditional sentencing eligibility, Canadians will have a justice system that imposes sentences that fit the severity of the crime, that properly deter others from committing serious offences and, most important, promotes safe streets and safe communities.

As I conclude my comments, I would like to remind all members of the House that they have a choice. A previous Liberal government introduced conditional sentencing that allowed serious and violent crimes to be eligible. In the last Parliament, the Liberal, New Democrat and Bloc opposition opposed previous legislation to end the practice of allowing serious and violent criminals to serve their sentences in the comfort of their own homes. However, this Conservative government is trying to ensure that serious criminals spend time where they belong: in jail.

Our government believes that the justice system should put the rights of law-abiders before the rights of lawbreakers. Whatever the leader of the official opposition may say when the cameras are on him, the record shows that the Liberal opposition members are soft on crime.

We call on the Liberals, both in this House and in the Senate, and all parliamentarians of all political stripes to listen to Canadians, to listen to their constituents and to walk the walk, not just talk the talk when it comes to being tough on crime. It is time for all parliamentarians to get behind the government's urgently needed safe street and safe community agenda, and for that reason I urge all hon. members to support Bill C-42.

[Criminal Code, October 20th, 2009]

Mr. Speaker, I listened to the member's contribution to the debate quite carefully, especially the part regarding the Privacy Commissioner's comment regarding small claims court and civil remedies being more appropriate than amendments to the Criminal Code.

I know the Privacy Commissioner and I spoke to her about the bill. I am a member of the justice committee. I would like the member to acknowledge that on May 28 Ms. Stoddart came out in favour of Bill S-4. In fact, she said, “We are pleased to see that the government is taking action on the growing problem of identity theft”.

I would like an acknowledgement that the chief commissioner of privacy for Canada is in favour of the bill.

[Criminal Code, October 20th, 2009]

Madam Speaker, the government believes that co-operation between all levels of government and between government and police agencies is absolutely necessary to put an end to identity theft.

The police were unequivocal in their testimony before the committee that this type of tool is required in their toolbox.

Yes, it is the intention of the justice committee, of which I am a member, and the government to co-operate with law enforcement and other levels of government, municipal police agencies, the federal police agency and the RCMP to work collaboratively and co-operatively to put an end to this growing area of crime.