Derek Lee

[Tackling Violent Crime Legislation, February 11th, 2008]

Mr. Speaker, does the hon. member not think that this motion and the process we are following here might arguably be seen by some as subversive of constitutional governance in that this House, if we were to adopt the motion put forward by the government, would be demanding that the Senate complete, within two weeks, matters of business and legislation involving five bills that took this House a year and a half to go through carefully? Does he not think that imposing the will of this House on the Senate is subversive of everything we have done under our Constitution involving two Houses in this Parliament ever since day one?

[Petitions, January 30th, 2008]

Mr. Speaker, I have a petition for presentation from over 700 signatories from east Toronto. They condemn the killing of the chief Tamil peace negotiator in Sri Lanka. They call upon the government and parties in Sri Lanka to end military aggression. They call upon Canada to urge Sri Lanka to do more to ensure that human rights are accorded to all in Sri Lanka.

[Privilege, January 29th, 2008]

Mr. Speaker, I will be quite brief because you have had the benefit of some comments earlier.

The member for Mississauga South raised a matter of privilege this morning concerning an apparent process within a minister's office that diverted or re-channeled inquiries from members of Parliament. In that process, the member referred to a prior question of privilege which was ruled on by the Speaker and which was found not to be a question of privilege.

The earlier question raised by the member for Skeena—Bulkley Valley involved a person allegedly assuming or arrogating the functions of an MP in a particular area on behalf of the government. In the bare facts of that case, you found that it was not a matter of privilege.

In this particular case, the MP himself actually uncovered within a department a process whereby when an MP makes an inquiry, it is not dealt with by the department but it is apparently sent elsewhere and that involves written or verbal inquiries.

I am suggesting to you, Mr. Speaker, that no matter what you call that process, whether it be diverting or diversion, re-channeling, punting, referring, proceduralizing or delaying, that process which appears to have been built into that department—and I have come across another case in another department—does involve a tangible material delay. That delay, in my view, and I suggest to you, Mr. Speaker, constitutes an obstruction in what is for most of us in this House a very routine piece of work.

If a member of the public were to call in the manner suggested by the MP, the civil servant would have answered the question, but because it came from a member of Parliament, and in his case he described himself as an opposition member of Parliament, and his office staff was asked if it was an opposition member of Parliament, the answer was not given and had to be sent elsewhere. If the constituent himself or herself had phoned the department to ask the same question, the constituent would have had the answer and it would not have been sent on to the minister's office.

I am suggesting that in that context, the procedure adopted by the department, whether it intended it to be this or not, constitutes an obstruction in the routine work of MPs in the way we normally pursue our work in this place. Not only does it create an obstruction and a delay, but it also offers the perception of obstruction. If the constituent were told of this procedure, he or she would say, “I do not need the MP; I am actually better off to do it myself. If I use an MP, it gets diverted and I do not get my answer”.

I personally attempted to get information from a different government department. It was the Department of Foreign Affairs and International Trade. I contacted the person and asked the question. The person said, “I am afraid I cannot give you the answer. I have got to give it to the minister's office”. I spoke a little while longer and finally the person in the department said okay, and gave me the answer. I was able to finesse the answer. The civil servant was good enough to give me this very routine answer to a question, but apparently the department was under instructions to refer the matter elsewhere within the department.

I think we have developing here a potential problem in relation to the privileges of members of the House. In connection with this, in the event you find that this is a matter of privilege, and I certainly will not prejudge that, but if you do, and if there is a motion to deal with it, then I would suggest that the motion include an order requiring the delivery from the department of the forms that are being used to deal with this procedure inside the department.

Maybe the minister himself in this case will be able to table the form if he wishes, and maybe this issue can be dealt with between the department and the House before it becomes a matter of privilege, if it does become a matter of privilege.

I simply would anticipate, although it perhaps is not my role, that in the estimates procedure coming up with respect to the Standing Committee on Health, I cannot imagine members would be very happy voting money for a department that at least on the surface appears to be impairing or diverting inquiries from members of Parliament.

[Criminal Code, January 29th, 2008]

Mr. Speaker, committees of course, as the member well knows, are creatures of the House. They take their orders from the House and not from any particular member.

On the issue of amending bills, there were two or three instances in this Parliament in the previous session when in the justice committee there were material amendments made by the committee to the bill. Some of the government members found that difficult.

I think in speaking about amending bills the member is probably thinking about material changes to a bill. This could happen again at the committee with other bills, but I think with this bill there seems to be around the circle support for the bill. The only types of amendments that I would envision at this time are really just technical common sense amendments that would be consensual with all the parties. I do not anticipate that kind of a problem with this bill.

In some other criminal legislation areas, we never know. The committee will do what it feels it must.

[Criminal Code, January 29th, 2008]

Mr. Speaker, that is a great suggestion. The laws governing obtaining a mortgage and a loan are provincial in this country. The federal government has a couple of laws that affect that area but in general the law of mortgages and hypothèques in Quebec are governed by the laws of the province.

The provinces are very unlikely to pass a law that says if there is a financial transaction there has to be a photo. As I understand it their laws are heavily weighted and biased in imposing the burdens on the financial institutions to know their clients and with whom they are dealing.

I know that financial institutions, because of these recent incidents, are taking steps to make sure that they visually know the borrower, visually check the land, visually check the tenant, and have people do this to ensure that they know exactly what is going on and that it is not a scam.

Whether or not a photo should be a part of the file, I do not know. What if it is a corporate borrower? How are they going to take a picture of a corporation? However, the member has the right idea. I think the financial institutions are taking appropriate steps.

[Criminal Code, January 29th, 2008]

Mr. Speaker, that is a very good question. I do not think we will be issuing a written guarantee with the bill that it will cover absolutely everything. As we deal with this bill, I am sure there is a criminal mind out there trying to figure out a way to slide something through the existing net of legislation so that he or she will not get caught and charged.

The member has raised a very good reference point. This bill will do a whole lot to better protect the class of Canadian that she has described, but it does not address the financial implications directly. If a fraud is committed, the money is lost or the money is diverted.

The hon. member mentioned mortgage fraud. I know that criminals have found a way to do mortgage fraud. This usually involves a fairly large amount of money. It is not a $100 item. A mortgage is usually for $50,000, $100,000, $200,000, $300,000 and even more. They have found a way to manipulate the provincial land registration system in a way that allows a mortgage lender to be defrauded using a personal identity. I have a case in my constituency office involving just that. A lady is working her way back after two court cases. She has done a great job. She had to hire a lawyer once.

It is just awful that Canadians are put in this position. The Canadian victim will bear the burden of making the information correct and there will be allegations that the Canadian has borrowed the money under the mortgage. In the end it is usually provable that the individual did not, that it was a scam and it is the financial institution that would normally bear that liability.

There were occasions in the province of Ontario where the first response of the government of Ontario was that it would not change its law. A buyer for value in due course, which is a legal principle, of a piece of real estate, without notice of a fraud, is able to buy the land and does not have to bear the responsibility. People have had their registered property sold out from under them by a scam and they were not aware of it. This is usually a case where the owner of the real estate does not live on the real estate. It is tentative in some way.

Eventually, I am informed, the government of Ontario decided to change its law, change its policy, and the innocent victims of these scams are now apparently to be believed and they can get their land back, or they do not lose it.

The law two or three years ago was such that individual Canadians who were scammed had to bear the brunt of it. Now as I understand it, it would be the financial institution which has been defrauded that would bear the brunt of it and not the individual Canadian whose identity was used to perpetrate the fraud.

These things are still working their way through the courts and there are many different scenarios. The short answer to my friend's question is that the bill goes a long way to regularize and patch up the law, but there are still some open areas involving not criminal law, but civil law and the law governing financial transactions and mortgages that still may need some repair.

[Criminal Code, January 29th, 2008]

Mr. Speaker, I am happy to speak to this piece of legislation today, as apparently a lot of members are. It looks like in its current state this has support from around the House. If it stays that way, it looks like the bill will be going to committee. Hopefully the committee will have an opportunity to deal with it expeditiously, to get it back to the House and finally to get it passed.

This is one of these areas in criminal legislation, and I suppose in all legislation, where the legislation comes into being after the criminal mind has already found a way to criminalize, to steal and to commit fraud. This particular area of information, personal identity, gives us a new type of crime in the sense that in the expanding universe of information and the increasingly complex universe of financial transactions there is a bigger playing field for the criminal mind.

This is just such a case. The legislation that now is being proposed attempts to cover off for society by criminalizing, prohibiting and proscribing certain types of conduct that we regard as anti-social and harmful. Most people would ask why we could not have passed this law 10 or 20 years ago. The reason probably is that we in the House do not all have criminal minds that would lead us to get our heads out in front of this, nor do all the great employees of the Department of Justice have that penchant for thinking like criminals. Usually we are in this position where we legislate after the initial harm, after the crimes of opportunity have been done by the criminals.

In this particular field of personal information, theft of personal identity and the use of that type of information for fraud and other crimes, I again want to point out for the record, and I made some comments on this a few minutes ago, that it is important to distinguish between recognizing and defining the whole field of personal information and taking steps to protect it in data banks, personal records and government records, and another area, which is the application of the Criminal Code to criminalize certain things that happen in relation to personal information.

There was a private member's bill in the last session, and I think even also in the last Parliament, with attempts by members to create legislation that would protect personal information, but inevitably the clash between protecting the information and criminalizing certain types of conduct produced a kind of incompatibility. I recall one bill that would have criminalized the act by a university student of trying to get a phone number and an address of some other student just for the purpose of having a date on Saturday night. That particular type of legislation did not distinguish between the two. It went too far.

As we legislate here now, I think this bill has it just about right. We have identified the actual criminal intentions that we want to proscribe. We have not touched what would be an ordinary layman's use of personal information or attempts to get personal information, although the bill comes close to it and we have to keep our eye on that line.

This particular area is sometimes complex because it is a new and developing area. It is a bit of a moving target. In the world of the Internet and the globalization of information, the target of what is personal information, what is financial information and what are other types of information is always changing, and the focal point changes right around the world.

Data banks are not necessarily in one location. They are in different countries. The data is transferred through land lines, satellites and service providers, land-based and otherwise. It is an exceedingly complex area. I hope Canadians will feel that our House of Commons and our Department of Justice are keeping up with this.

The personal information that we try to protect is out there in so many places. A couple of years ago, I noted how much junk data is on a website called Wikipedia. That particular website purports to be an information site, but apparently anybody can load up information of any sort. The information is not screened. It can be false or inaccurate information.

That particular website is simply not what it appears to be. It contains false and misleading information filled with innuendo. At least if it were a tabloid, it could be sued, and it would take responsibility for what it published in terms of libel laws, but boy, on the Internet that is tough. I just mention Wikipedia. It seems to be a group of rogue dot-commers trafficking in junk information, which sometimes includes personal information.

This legislation of course does not attempt to deal with the dodos in that type of junk information, but it does try to protect the personal identities of Canadians.

About two weeks ago, a staffer at my Scarborough office in Scarborough--Rouge River was a little nervous. She came into my office saying that we had an email addressed to me personally and it looked kind of strange. She gave it to me gently and I looked at it. The email was asking me to confirm that I had made a particular purchase on my credit card. I do not know what the purchase was, but it was for a couple of hundred dollars. It so happens that I do not have the particular credit card that was named in the email.

Since this was the first time such an incident had happened, my staffer attached significance to the receipt of that email, thinking it was real, accurate, bona fide and important and there was some kind of problem with my financial transactions. Since I did not have the type of credit card referred to in the email, I knew immediately that it was part of a scam. I guess the company was inviting me to get back to it, say it was not my purchase because it was not my credit card, and then the company would ask me what credit card I did have. I would say that I had another one and the company would ask to verify that.

This happened to me two weeks in my constituency office, which the taxpayers pay for, and it was the first time this type of thing happened to me. This type of potential scam, this fishing expedition, is all over the place. I am sure that anything we can do here to try to protect innocent Canadians from this type of scamming would be appreciated. I would appreciate it. So would my staff and my constituents.

I have mentioned the clash between the protection of personal information and the criminalization of the use of it. In relation to that, I noted other bills that tried to criminalize the use or passing on of personal information without the consent of the person. There were some areas that I thought we should make sure to protect, but as it turns out we do not have to do very much because this bill has been re-targeted at particular criminal acts.

Those previous bills contained the concept of a person seeking personal information. I mentioned the university student looking for a name and a phone number for a date. There are also people promoting a charity who are looking for a name, phone number or address. They are looking to solicit a charitable donation. Someone might be doing it to promote a religion, a religious faith, or, and listen up colleagues, somebody might be doing it for political purposes. These are all normal pursuits that we generally accept. We accept that people promoting their interests, their groups, their societies or their community associations will seek out names and addresses of people they would like to approach.

We have to make sure that we do not impose a chill on our communications and social intercourse in our communities in an overreaction to the potential criminality that is out there. This bill does not come very close to that, but it is an area that I will be looking at as we scrutinize this at committee.

The Department of Justice has used the bill to fine tune some existing legislation. The bill proposes arguably three new types of offences, but in fine tuning the existing legislation we actually create and broaden some existing offences. It has been done in a good way. I think it all fits fairly well. Some existing legislation has been altered to make prosecution, conviction and investigation a little easier and a little clearer so that we do not have to rely on the conspiracy laws in the Criminal Code.

An example is the offence of theft from the mail. The proposed legislation expands the class of mail that is protected from theft. Most people think that if someone steals something from the mail, it is an offence, and it always has been. One of the areas that was never clear was after the mailman had delivered the mail to a house or business. It could be put in a mail slot and the mail would drop onto the floor. The mailman could put the mail in a mailbox on the front of the house or business, or it could be left inside the door. Nowadays Canada Post has neighbourhood mailboxes not connected to a residence. People have to walk across the street or a couple of hundred yards to pick up their mail. After the mailman delivers the mail to that box, is the mail still protected? Is that theft from the mail?

After the mailman puts it through the door slot, is that mail still in the course of mail? In previous interpretations, it was not. Once the mailman delivered the mail into the box or through the slot, the mail had been delivered and apparently the mail was not protected by the mail theft statute. It was still protected by the theft statute, but not mail theft. After that letter is in the house and is put on the kitchen table in so many homes, if taken, would that still be theft from the mail?

The solution is a rather good one. It does not clarify everything but the amendment is that everyone commits an offence who steals “any thing sent by post, after it is deposited at a post office and before it is delivered, or after it is delivered but before it is in the possession of the addressee or of a person who may reasonably be considered to be authorized by the addressee to receive mail”.

If one is really well off and has a butler, and the mailman delivers the mail to the butler at the front door, that is delivery. If it is just put in the mailbox, from the point of view of the post office, that is a completed delivery, but our Criminal Code is going to continue to still protect that letter until it is in the possession of the addressee or the addressee's representative. That is a good change. That does not have anything to do with the Internet. That just is a good common sense change to protect our mail the way most Canadians would want it protected.

The bill has a number of other technical changes referring to pieces of equipment, government identity cards, government documents and even identity documentation issued by the provinces. I am sure it is constitutional. Documents produced by a province or the federal government that are stolen, used, or just simple theft of them is an offence.

Now the use of them in fraud, impersonation and pretending to be somebody the person is not for the purpose of stealing, fraud, theft and deceit is better and more clearly criminalized. This will allow better investigation, better prosecution, more appropriate convictions, better sentencing and hopefully a bit better order in an area that has needed some legislative amendment and updating.

Having said all of that, I am certain we will be back in this House five or six years from now to update this type of legislation again, because as I said, the target is always moving. As the technical and information universe expands, we may well see other areas that need amendment and improvement.

[Criminal Code, January 29th, 2008]

Mr. Speaker, when the bill is studied by the committee or the House in some other way, does the member believe we should look more closely at the distinction between the need to protect personal information, and there is a whole body of legislation that does this, and what we do now, which is the criminalization of the taking or theft of personal information, personal identity or documents that contain personal information or personal identity?

I notice the debate sometimes slides around between criminalization issues involving the trafficking or theft of personal information and the concept of simply protecting through other laws, and not criminal laws, the containment and conveyance of personal information in records. Has she noted that as an issue and does she think that should be an appropriate focus for the committee in the event the House accepts the bill and forwards it on to committee for review?

[Unborn Victims of Crime Act, December 13th, 2007]

Mr. Speaker, let me start out by congratulating the member for Edmonton—Sherwood Park on finally managing to get a private member's bill before the House. I should point out just for the record that getting private members' bills into the House is not a question simply of merit. There is a bit of mathematical chance involved so all of us are treated fairly equally, but I am sorry the member had to wait so long to get a bill in front of us.

I should also note that the member for Vegreville—Wainwright had a bill similar to this one but not identical before the House in a previous Parliament.

The member opposite speaks of the grief that accompanies death or serious injury as a result of a criminal act. I have often found it difficult in the House and the justice committee to import that element of grief. It is very real for all of the victims, their families and friends and for Canadians. I often find that the analysis of our laws around here is pretty clinical and academic at times, pretty legalistic, so I thank the member for putting on the record the emotional and the grief components that accompany this area of law.

Bill C-484 attempts to address what is arguably a gap in our criminal law, and it has been a gap for some time. One might ask why it has been a gap or why we have failed to note the protection that should be accorded to a pregnant woman and her child. We certainly afford protection to the woman.

It is perhaps the long national debate over the termination of pregnancies, that whole field, that has obscured this particular piece, and I am pleased that the House now has an opportunity to deal with it.

Having said that, it is important to note that this bill meticulously imports the element of mens rea, the element of intention into the bill. It makes sure that the perpetrator, in order to be charged and convicted, has to know that there is a woman who was pregnant and victimized by a criminal act. That is a very important component linking the perpetrator to the wrongdoing involved. If we were not to do that, there could be a scenario where the perpetrator of a crime might not be aware of the pregnancy, and in our criminal law we almost never convict people in law unless they know the consequence of what they are doing.

There is a section of the Criminal Code that now partially, some will say very partially, protects the unborn child, the fetus. Section 238 makes it an offence to cause death during the act of birth, causing death to the child being born in the act of birth. That is a very narrow window of time. Of course, this bill looks well in advance of the time of birth.

I am advised that according to the National Conference of State Legislatures in the U.S.A., our neighbour to the south, some 37 states have fetal homicide laws, in other words, laws that protect the unborn child, the fetus. Two of those 37 states have developed their law, not by passing laws in their legislatures, but by judicial case decisions, by judicial case law.

Each state in the U.S. develops its own criminal law in this field. In Canada we do it cross-country. We have one Criminal Code. I say that to signal that Canada would not be alone in this. In fact, we are not even near the front of the pack on this, as my friend earlier pointed out.

One other thing I want to mention is that the bill explicitly by its own terms does not deal with the lawful termination of a pregnancy consented to by the mother. It does not deal with that category of action, but it does very much deal with protecting an unborn child during a criminal act directed at the mother knowing that the mother is pregnant.

In layman's terms, I ask myself the question, who could reasonably deny to a child prior to birth during an assault or another criminal attack on the mother, knowing that the mother is pregnant, the protection of the Criminal Code that that child deserves? I could not deny that. It sounds so very reasonable. Admittedly the circumstances where it might occur are not going to be too common but it just takes one instance.

My friend from Edmonton—Sherwood Park has put on record reference to a number of incidents where exactly this kind of thing has happened. In a world of over six billion people and a country of 33 million, there are going to be unfortunate incidents.

I believe that we should act now to pass this law. I could not deny that protection and I do not believe my constituents would either.

My friend has pointed out that according to some polling, 75% of Canadians agree some form of law would be appropriate. I am one of those 75%. I think my constituents would support me in that. I will be supporting this bill.

[Committees of the House, December 12th, 2007]

Mr. Speaker, I have the honour to present, in both official languages, the second report of the Standing Joint Committee on Scrutiny of Regulations in relation to the issue of incorporation by reference. This is a matter of continuing concern for your joint committee. Our report canvasses previous positions taken by the Department of Justice, the concepts of sub-delegation and jurisdictional inter-delegation and court decisions, and hopefully clarifies for Parliament and the government the legal limitations in using open incorporation by reference in government regulations.