Derek Lee

[Questions on the Order Paper, January 31st, 2011]

With regard to the Minister of Finance, what are the exact, line-by-line details of all travel and hospitality expenses incurred by the Minister and all exempt staff since January 1, 2009?

[Privilege, December 15th, 2010]

Madam Speaker, on the matter of the alleged breach of privilege, I want to focus on one important but fortunately narrow point.

In her statements and remarks to Parliament about this particular issue, the Minister of International Cooperation led parliamentarians to believe that the KAIROS application was turned down on a particular basis. Whether it was her remarks in the House or her remarks at committee, which are part of the parliamentary record, her remarks led parliamentarians to believe that the KAIROS application did not fit with the criteria used by the government. When I say “government”, I refer to CIDA. I am not talking about the cabinet table. I am talking about the rest of government.

That had the effect of making the applicant, KAIROS, and it should have had the same effect on everyone else in this House and at the committee, believe that the KAIROS application was somehow deficient, that the denial of the application was administratively proper.

As things turn out, the parliamentary record now appears to show that there was not anything out of order in relation to the application at CIDA, that there was full compliance, and CIDA recommended approval. This has been confirmed, at least in part if not in totality, by the member who was the parliamentary secretary at the time this issue first arose

Members on the fact scenario here have been misled, and whether it was intentional or not, I do not know. However, this has misled members and undermined Parliament. It has actually caused Parliament to spend a whole lot of extra time on this because the question has come up time and time again. It is an issue for many people across the country.

We were allegedly so misled on this that we did not really understand that it was not anything about KAIROS, or about the process, it was simply the minister or ministers at the cabinet table who made a decision. And the decision may be politically arbitrary. I do not know, they are entitled to make those decisions in government, but an undocumented, arbitrary decision was the reason KAIROS did not get funding.

We could not have known that here because the minister, either here and/or at committee, told us all that the application just did not meet the criteria that existed at CIDA. That scenario of misinforming us, of misleading us, has caused us to spend a whole lot of time.

I want to make sure that you, Madam Speaker, and the speaker corps had a really good focus on this because I think the House has been misled. I think we have a smoking gun. It may or may not be a hanging offence, and we are not alleging that it is, but we are saying that it is a matter of privilege because the process and the words that caused us to be misled have not been properly addressed.

I am very hopeful that the minister will speak to the House about this and I am waiting to hear what she has to say.

[Privilege, December 15th, 2010]

Mr. Speaker, I want to make two brief contributions to this intervention, but before I do that I want to say that, at least from my perspective and I think the perspective of my friend from Parkdale—High Park, this intervention is being made not as government versus opposition versus government. It is actually referenced and focused on Parliament as an institution.

Some day, the men and women on that side of the House may be on this side of the House, and there is a distinction. The men and women on that side of the House are in government. My two remarks are focused on this.

Just as an individual member does not have, cannot have and should not be permitted to have a licence to malign another member under our rules, and everyone here understands that, should that occur in proceedings, which sometimes happens intentionally or inadvertently, the member who is purportedly maligned is able to get up and set the record straight and, hopefully, if a mistake was made, an apology occurs, et cetera.

However, in this case, I want you, Mr. Speaker, to take note that the question of privilege raised here is with reference to the government, not to a member, using its position in question period as a forum to allegedly malign or misinform.

Question period is intended to be an opportunity for the opposition parties or individual members to ask questions of the government. It is not to debate but to ask questions, to actually impose a procedural accountability. Recently, however, there have been many instances, and I will refer to one that happened two or three weeks ago, where, in question period, one of the ministers rose and responded to a question and referred directly to an individual member of the Bloc Québécois. I am not sure I even recall all of the elements of it but it was intended specifically to malign, in some way, a member of that political party in a way that had either zero relevance to the question raised or only marginal or indirect relevance. I thought that was grossly unfair and it happened on more than one occasion.

The one big point I am making is that, just as an individual member cannot be allowed to use freedom of speech in this House to malign, so cannot the government be allowed to use its position in question period to do the same types of things. If it can do that, if it is a free-for-all at question period, if the answers to questions can be totally irrelevant and, at the same time, malign another member, that is the same thing as saying that it is okay for the Crown to undermine a function of Parliament. It is a free-for-all for the government to go right ahead and undermine every member of the opposition it possibly can because that will fulfill its political objective. We cannot let the government do that.

Mr. Speaker, you and the other speakers will say, “If the House does not have confidence in the government, defeat it. We will have an election”. That might be possible today in this Parliament, but what if a government has a majority? Most of the time in this country, our government has had a majority in the House and the opposition members cannot defeat the government. Therefore, if this problem that we are trying to outline here continues to exist and maybe even grow, we will have a situation where the government, the Crown, in majority, has built itself the right in this House to undermine, to malign and actually disrupt and obstruct members of the opposition in doing their job of scrutinizing the government.

Sometimes men and women on this side of the House ask some very tough questions that are worded in some very sharp and pointed ways that offend the government. It is not personal, it is essentially opposition parties doing their job. However, to allow the government to do the same thing and undermine individuals can only end in undermining the functions of the House.

The complaint is on a member who says, “I have been maligned and I think I am being institutionally maligned by a government that has taken on as part of its function the business of gathering information, which, if stated in a certain way in question period or whenever the heck government members get the floor, can only result in the maligning and intimidation of a member of the opposition”. There is the implied threat that if the member gets up, the member will be attacked by one of the government's attack dogs and the entire federal government is working on this as part of its agenda. That is something that Parliament cannot allow. If it goes macro and becomes institutionalized in this place, our effectiveness as a Parliament on behalf of Canadians will be undermined.

I do not know exactly how you, Mr. Speaker, are going to be able to deal with this because it is perhaps a novel point. The question of members maligning other members intentionally or inadvertently arises from time to time and we can all collectively apologize and go to confession for that. However, when the government starts to do it, it is a new ball game and a different type of issue.

[Standing up for Victims of White Collar Crime Act, December 14th, 2010]

Mr. Speaker, that is a very legitimate question. Certainly the Canada Revenue Agency can go back a few years, but some of these frauds take place over five and ten years and individuals will have paid tax on income from investments that, in some way, were fake. In other words, the income they were told they had never came.

However, being told they did have income, they were good people and they paid income tax on it. Certainly limited adjustment of tax paid going back some years is possible, but individuals have to be able to convince the CRA that the income they thought they had was fake.

These people are unfortunate. In the case referred to by my friend, there actually was an ongoing enterprise. There actually was money moving around, and therefore it is very difficult to dissociate the income that they were advised of from the enterprise that produced the income. A proportion of the income they were told they had was fake, maybe all of it, but because they cannot get at the records, it is very difficult.

My friend also asked about mandatory restitution. I do not believe that helps at all. If there are viable assets or the hope of assets, then a restitution order is an appropriate public policy disposition.

[Standing up for Victims of White Collar Crime Act, December 14th, 2010]

Mr. Speaker, the answer to the last question is that this bill is related to franchises. A fraud is a fraud is a fraud. The problem is getting in on a franchise scenario after the thing goes bad, getting the evidence of the deceit, of the fraud.

The biggest reason why I think we do not have provincial legislation governing franchises is the big boys. We all know who the big boys are: huge multi-billion dollar enterprises that properly use franchises in food service, restaurants, retailing, doughnuts. I will not mention any names. The big boys say please do not over-regulate this business area, because it would clog the thing and give rise to all kinds of problems and it would be worse off after the governments legislate. The provinces have said that they would leave it there. The problem is that the little guy is getting hurt and defrauded from time to time.

The federal government would have difficulty legislating in relation to franchises, because I think it is pretty much accepted to be a provincial jurisdiction, but in the meantime, there are smaller investors who are getting hurt. It is really sad when we see it. Then we look back with 20:20 hindsight and ask how they could be so dumb to leave $100,000 with this guy when they never got to see what their real estate location looked like. They might say that it was their brother-in-law or somebody who knew somebody else and they came from their home town. It is really sad, and there is an incapacity of government on a public policy basis to provide solutions to that. It is an unresolved issue, as my friend points out.

[Standing up for Victims of White Collar Crime Act, December 14th, 2010]

Mr. Speaker, the member has quite properly raised a whole lot of issues and has managed to cover them fairly quickly. I am not so sure I can do it so quickly.

The bill would create what the member calls a prophylactic effect, but the bill has a procedure where if someone were convicted, he or she would be prohibited from doing certain things and maybe a lot of things in the commercial environment. Those prohibition orders can go a long way to keeping someone who has been convicted from engaging in that type of fraudulent activity. Therefore, there would be fewer victims. It is true that bill would do that. I am not saying that the bill does nothing. I am saying that the bill does a whole lot less than it is being held out as doing.

The deterrence does not do anything as far as I can see. The denunciation has some value. The prevention of people from continuing to engage in crime is real, but before that even happens the guys must get caught. There needs to be a criminal act and then an investigation, which is very expensive stuff, and then the conviction and the sentencing. I think we get way more bang for our buck public policy-wise if we were to look for ways to get out in front of some of this stuff.

I will accept the member's comment as a good one. The bill, while not as much as it is held out to be, does have some positive contributions.

[Standing up for Victims of White Collar Crime Act, December 14th, 2010]

Mr. Speaker, I am pleased to speak to Bill C-21. I believe I was fortunate enough to speak to it earlier and I do not think I had enough time.

I want to point out for my friends across the way that this is our job. We are not trying to hijack the process. We are doing our job in opposition. A lot of the time we will suggest the glass is half empty and the government members will suggest it is completely full, but that is okay. We still have a job to do and we want the record to show our concerns and misgivings. No bill is perfect. Every bill will get criticized usually in some way. That is my job and that is what I will do today.

Reflecting on some of the earlier comments, there is an air of pretense surrounding the bill. There is a sense that the bill will do a whole lot more than it really does. One of my colleagues said that this was just a sentencing bill, that it did nothing to stop crime. The sentencing occurs after a conviction. The conviction occurs after the criminal act. It has done nothing to deter or prevent that particular criminal act. By pretending a bill that has a whole lot to do with sentencing will have a whole lot to do with crime prevention is pretentious and we in the opposition have spotted that pretense. Whether or not the pretense is on the six o'clock news, as my colleague from Moncton just suggested, or whether it is in the short title of the bill, it is our job to identify it as pretense, which allows me to speak about the short title of the bill.

For the last couple of years, the government has consistently hijacked the short title of these bills. Not everyone knows the short title is section 1 of the bill, which tries to describe what the bill is about, but the government has hijacked that for a commercial. Conservatives want to spin what is in the bill. In fact, some of the time, as has been pointed out, they are spinning something that is not even in the bill. Therefore, members of the House have taken objection to some of the bills that go to committee.

The member opposite asked why were we concerned about semantics. It is not about just semantics; it is about hijacking the bill for a political purpose. We did not fire the first shot on this. It was whatever clever bird in the backroom that helped to prepare the bill decided to hijack the title and put something really different and sexy in the short title of the bill. It will get attention and every time people refer to the bill they will repeat this politically torqued short description. Most of my colleagues in the House, not on the government side, are saying no, that we will not do that. If the government wants to have a short title, put it in. Let it describe what is in the bill and do not torque the thing for the six o'clock news.

Also, by dealing with sentencing, I really do not think it will provide a lot of deterrence for future crime: denunciation, yes. However, by standing in this place and talking about the badness associated with any number of criminal acts, by telling the courts that when they process these crimes, when they attempt to address the needs of victims, it will be done in a certain way, shows a very reasonable level of societal denunciation with respect to the crime. I cannot imagine anyone would not be in favour of that. Putting a crime on the front page of the newspaper pretty much does the same thing. Denunciation is there, but deterrence is not.

My experience in this field over the last 20 years, not as a criminal but as a member of the justice committee, has always led me to believe that criminals who commit this type of offence and many other types of offences are not deterred by what is in the Criminal Code. It does not matter what the sentence is, they do not think they will be caught.

Torquing the sentencing in some of these areas, yes, because it reflects increased denunciation. It is like saying that we are really mad at people who commit criminal acts. That is okay, but it will not deter the person because that person does not think he or she will be caught.

In relation to white collar crime, at which this bill is said to be targeted, a lot of those perpetrators really do not think they will be caught. They think they have a really neat scam. Usually these things start small in the beginning and then they become bigger and a lot of people are hurt.

The objective, from a public policy point of view, really ought to be to get out in front with some kind of crime prevention, some early warning system that can intervene and protect the people who are about to be hurt. In almost all of these scams, once the money is in, it is gone. It is down the road somewhere. It is in lifestyle, gambling, whatever.

In some cases, these white collar crimes started off all right. There was an investment in real estate. Maybe the real estate investment was a little wonky, but it was still an investment in real estate. It could be swamp land, but it starts off with something tangible. Then things go sideways. The money gets diverted. The fraud and deceit begin. People are lied to. After a year or two or three, whether it is a Ponzi scheme or something else, the people are hurt, the investment is seen to be bad and lost.

This bill is almost like a fairy tale. It suggests that we will deal with the loss of the money. We will step in and make the court deal with restitution. That sounds great, but so do fairy tales. If restitution had been possible, the bozo who began the scam would have been able to pay back all or most of the money in the first place.

It is because the money is gone. I suppose there might be one case in hundred where the person who is convicted has a restitution order made against him or her may go back to work, or may go back into business, if the individual gets out of jail, and start to work to pay some of those restitution orders.

I wanted to reflect on the pretense, the fairy tale involved in this type of legislation. I do not, for a moment, want to suggest that I am not favour of victims getting restitution. That is the concept, that is the fairy tale and that is the hope.

I suppose we could say that if in one case out of hundred victims received restitution, it was worth it. I would have to agree with that. I just do not want the record to accept the pretense that this legislative solution will solve all of the problems, and there are a lot. Fraud is a very old section of the Criminal Code. It is based on the common law tort of deceit, and it is a criminal offence. It always has been.

However, since the Second World War there has been a huge increase in community interconnectivity in terms of money. We are not just moving dollar bills around. We have credit cards, cheques, money orders, debit cards, ABM cards and cash cards. There is no end to the money or money's worth in all the vehicles we have for spreading it around. We have chequing accounts, savings accounts, RRSPs, home ownership savings plans, RESPs, RIFFs, stocks and bonds, treasury bills, GICs, life insurance and pension plans, some of which are self-administered. However, with all of that financial interconnectivity, there is huge potential for money going sideways or being stolen.

I often think about how lucky we are that with all the billions and trillions of dollars moving around there is not more of it that goes sideways. It is probably because we in Canada and a lot of the rest of the world have at least some financial infrastructure that works. I am reasonably assured that the money I put into my bank I will be able to get back and I can transfer money safely.

There is certainly a whole lot more potential for fraud. Individuals who make one mistake in the beginning when handling people's money, which then leads to a second mistake, and then it escalates. All of this multiplies 1,000-fold when we put it all on the Internet. It can happen with collective amounts. I have to accept that there is a need to update our law on fraud in the Criminal Code provisions.

I want to look at the process in this bill that governs restitution. I had a question that was never answered throughout the process. I wanted to know what would happen if there were a conviction. The court must ask, under the provision, whether victims have had an opportunity to indicate if they would like a restitution order. It does not mean they get one, but the judge must ask if they have had that opportunity. The prosecutor will then respond yes, no or maybe and there is a form that victims can use. That is a step up. It is more like something in a small claims court but there is a form victims can fill out to describe their losses. That is not a bad thing.

The part that caused me to raise the question is in subclause 380.3(5). This is after there has been a request by a prosecutor or victim for a restitution order. It states:

If...the court decides not to make a restitution order, it shall give reasons for its decision and shall cause those reasons to be stated in the record.

That is in a case where the judge says that for particular reasons, he or she will not give a restitution order because it would be useless. I cannot imagine all of the circumstances that could be involved but the judge has that capacity to make a decision. What I am curious about is what happens if the court does not make a decision. It does not really say that the court has to make a decision. There could be a scenario where the court does not decide yes or no and no reasons are given.

After reading through the section, I got the impression that there was a gap. We have the situation where a judge decides to make a restitution order and the situation where the judge decides not to make a restitution order and those two situations are covered off in the bill. However, there is a third scenario where a decision is not made. The process that is outlined in the bill leaves it rather unclear and that usually causes problems down the road for judges, lawyers, victims or those who are accused.

Quite naturally, the government wants to pretend that this is a great bill but there is no place in this bill to discuss what happens with such things as the impact of a bankruptcy. As well, there may be some who will resist the obvious policy position of the government that, where there has been a theft or a fraud, a criminal court would be turned into a small claims court. I do not think the two fit. The work of a criminal court has a lot of bad stuff reflected in it. It is not the kind of environment where one would think there would be much positive coming out of small claims court atmosphere, which is being imposed in part by this bill.

However, we will see how it works out. If some victims, even a few, are happier to have had the chance to put their loss on the record and a chance, however small it might be, of some restitution, then I am happy about that and I do not want to carp about it. This could be a good change.

I suppose we could look at this from a public policy point of view. For example, let us say that we did have a criminal conviction but that there was no restitution order made for the victim. Let us say that the amount involved was manageable, not one of these $20 million scams, but about $10,000 or $20,000. If there was no restitution order and the person convicted serves a one or two year sentence, whatever it is, the victim in that case would probably need to go to civil court to recover those moneys. This provision would pre-empt that and put them together. The citizen who had been defrauded would not need to go to the civil courts. He or she has the court order and it is good for the sheriff. It is good to go if there are assets that can be seized to pay the debt.

I want to draw attention to another area. Franchise sales are accepted to be a provincial jurisdiction. It is a commercial transaction but it involves someone who has a business concept and he, she or it, as a corporation, will then sell a franchise right to a purchaser. This is a common happening. Many of the large franchise grantors are known and it is a very successful commercial vehicle for a small or medium-sized investor. However, over the last few years I have been made aware of problems in the franchising industry. I represent a riding in Toronto, Ontario and the provincial legislation just was not up to snuff. However, if one can get evidence of fraud, it looks like this legislation would cover it.

We may be solving more problems here than the government has actually advertised. It may be possible to rectify what has been a sad situation involving the sale of weak, non-existent or fake franchises to people who put up the first deposit, and the second deposit might be up to $100,000 or more, just to find out that there is nothing there. The guy who sold it to them could be living in Halifax, Calgary, Moose Jaw or Toronto.

[Business of Supply, December 9th, 2010]

Madam Speaker, the court challenges program was a federally funded vehicle that allowed groups and individuals who were underfunded to challenge the existing law with reference to the charter and enforce their rights. In a period of transition following the adoption of the charter, that was a very useful vehicle. I am not so sure its usefulness had expired. I think this might be a 50 year exercise. I do not care if it is a 100 year exercise, but the court challenges program was a wonderful vehicle to assist the poor and the marginalized, the people who could not afford to take the state on, to take their matters to court and have them judicially sorted out and then to allow members in the House to respond.

[Business of Supply, December 9th, 2010]

Madam Speaker, the hon. member should go back and check on the issue of who is or is not supporting initiation of an inquiry. I am not too sure he is right about his suggestion. However, having a public inquiry is not a charter right. It is absolutely true that everyone who was out on the street that day had charter rights, as did the police. At the end of the day, it appears, and I have not looked at any individual case but as I read the newspaper, that some people were pushed around that day and some people were arrested.

I am, as I hope everyone in the House is, totally supportive of any process that would look into those events, provide redress to those who have a legitimate legal grievance with respect to the charter or any other statute and develop a process for that. If it needs to be a public inquiry, by all means, but that is an Ontario decision.

[Business of Supply, December 9th, 2010]

Madam Speaker, no, I am not suggesting there has been anything untoward in the criticism in the sense that individuals have every right in the world to be critical. I was trying to point out that in their criticisms they had not been specific enough to identify any particular part of the charter that I might be able to fix or that they might suggest be fixed. I am happy to have members even in the House stand and criticize the charter. I just have not heard it happen yet.

Therefore, I encourage dissent. For all those who criticize it, surely they must realize it has been a vehicle that assures and accords to the poor and marginalized of our country that they are always taken into account when legislation is passed and when policy is developed.