Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence - June 4, 2009
OTTAWA, Thursday, June 4, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:49 p.m. to study clause by clause Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct) and Bill S-205, An Act to amend the Criminal Code (suicide bombings).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome. Today, we will proceed to the clause by clause study of Bill S-4. We thought it might be potentially useful to invite justice department officials so we can eventually ask them questions. I know I have a few questions, and I know Senator Nolin and probably other senators have some also.
[English]
I will try to keep questions to officials as tight as possible, after which we move to discussion of the bill. I believe that amendments will be proposed that will require additional discussion.
Senator Nolin: Madam Kleinberg, yesterday representatives from the Canadian Bar Association appeared before the committee. They recommend the elimination of the two exemptions. Please explain why those two exemptions should remain in the bill, without reference to the more general exemption that exists in the Criminal Code at section 25.1 to 25. 3.
Joanne Klineberg, Counsel, Criminal Law Policy Section, Department of Justice Canada: Marke Kilkie will be able to answer those questions.
Marke D. Kilkie, Counsel, Criminal Law Policy Section, Department of Justice: Senator, you have framed it well by referencing the law enforcement justification as a general scheme. It envisions police discretion combined with accountability and oversight for committing acts that would otherwise be offences. Those acts are not defined in the bill. Rather, it is left to the officers, through the criteria of the scheme generally and the test within the scheme that the action they take be reasonable and proportionate in the circumstances of the specific investigation that acts as the trigger for the justification.
In the example of covert identification, we are talking about a discrete offence. I draw the analogy to the fact that the police are exempted from the carriage of side arms, which would otherwise be an offence. Rather than have the police exercise discretion and apply the type of test that is in section 25.1 of the Criminal Code for the daily carriage of their side arms — the tool they use to carry out their duties, we provide an exemption from the offence that would apply to the rest of us for the same activity.
I draw an analogy for undercover officers to covert identification as being something integral to the carrying out of their duties. Parliament can look at that up front as the parameters of that offence and decide that it is in the public interest to allow them to commit that action and know the limits. I would view it as akin to the firearms issue and, therefore, appropriate for a specific and curtailed statutory exemption as opposed to an exercise of discretion.
Senator Nolin: Does it exclude from the application of those exemptions the existing schemes in the Criminal Code whereby the authorities must report on the exercise of those exemptions by police officers?
Mr. Kilkie: The scheme under the law enforcement justification requires that reporting. This exemption would not require that in much the same way that the exemption for firearms or the possession of child pornography or other exemptions that Parliament has seen fit to exclude police bone fide conduct from the offence provision. Those also are not subject to reporting. This would not be captured by the reporting requirements of 25.1 because it is a stand-alone exemption.
Senator Nolin: Thank you.
Senator Baker: Of course, this gives the police the authority when conducting covert operations to violate sections 366 to 368.1 of the Criminal Code. Section 366 applies to the forging of another person's identity. The section would allow the police in covert operations to assume someone else's identity, as found in sections 366 to 368(1). In the carrying out of their duties, the police are able to violate the Charter.
That bothers me because we passed section 487.01 of the Criminal Code about 10 years ago, which allowed the police to use any technique in an investigation. That has evolved into covert break-ins to resemble a real break-in and techniques of investigation that violate the Charter. That section is now questionable. I did not think it would evolve into that when we passed it because I thought it was a pretty straightforward addition to the existing requirements that electronics were changing and, with the new technology, police would have new investigative techniques. The Criminal Code speaks to "covert activities,'' just as this bill speaks to "covert activities,'' and it is questionable. I have not checked recently, but it is questionable whether it is constitutional. Would you agree that it is a subject of much discussion in case law?
My concern is that almost every warrant is issued under section 487.01 of the Criminal Code because you can do whatever you want to do. It says "any thing.'' With this bill, we are doing the same thing with the same words covert activities. We are excusing the police from what would normally be a violation of the Charter.
Mr. Kilkie: In a moment, I will defer to my colleague to speak to the specifics of whether that would be possible under the amendments in terms of another person's identification. The information that I have from the police is that covert ID is invariably used in the name of a fictitious person as opposed to a live person.
On your point about the general warrant, covert activities and surreptitious entry, et cetera, under "any thing'' are not solely at the discretion of the police but must be judicially authorized within the warrant. It is a specific technique and I mention that from a Charter perspective.
Senator Baker: Absolutely. However, the judge is simply following the law because it says, "any thing.'' We passed that in section 487.01. "Sneak and peek'' is the favourite one — walk into anyone's house any number of times at any time to sneak and peek. That is legal in Canada under section 487.01. There is no restriction in this bill on stealing someone's identity under clause 7 of Bill S-4.
Ms. Klineberg: The exemption provided in section 368.2 is narrow and limited. It simply provides an exemption to the offences in 366 to 368.1. It does not in any way provide an exemption or defence to a charge of personation, for example. If a police were impersonating a real person and made out the offence of personation, nothing in this exemption would provide a defence to that charge of personation.
Senator Baker: Is that so?
Ms. Klineberg: Yes. It provides only an exemption to the offences of forgery and forgery-related offences. It does not provide any additional protection from liability for any offences not listed in that section.
One act might be exempt from the forgery provisions, but that police officer could still be guilty of other offences if he is committing them.
The Chair: Okay.
Senator Baker: It is not, Madam Chair. I do not think it is okay, but I will let it go. I know the answer.
The Chair: I was not prejudging your conclusion, Senator Baker. I said "okay'' in the sense that I thought Ms. Kleinberg had concluded her response.
Senator Baker: Those were excellent answers.
The Chair: Do other senators have questions?
Senator Joyal: I understand clause 7 and clause 9 of Bill S-4 in relation to a public officer. They do not cover the police, who know that he obtained false identity papers and he is using them. In the other provision of the Criminal Code, that police officer would be protected from being charged with a criminal offence.
Mr. Kilkie: Can I clarify? Is your question for the mere possession of false identification?
Senator Joyal: Yes, the possession and the use of it. If we exempt the public servant who is giving information to constitute a false identity, as proposed section 368.2 mentions, we are exempting it from being guilty of an offence under this act. Section 368.2 states:
No public officer, as defined in subsection 25.1(1), is guilty of an offence under any of sections 366 to 368.1 if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity for use in the course of the public officer's duties or employment.
In other words, a civil servant would be clear, but the police would use that identity paper in its covert operation. Where is that policeman benefiting from innocence on the basis that he is doing something wrong — he is doing something criminal?
The way you read section 368.2:
[Translation]
No public officer, as defined in subsection 25.1(1), is guilty of an offence under any of sections 366 to 368.1 if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity —
[English]
Mr. Kilkie: My understanding is that you have questions concerning the phrase "public officer.'' For public officer, we have used the same definition that is used in section 25.1, and that includes the police. A public officer is defined there as any public officer with the powers of a peace officer.
The reason we have used that definition — and I understand it is confusing because there are other definitions of "public officer'' in the Criminal Code — is to narrow the scope of the class of people who can make use of this exemption, so as not to broaden the use of covert ID in the course of investigation to a class larger than those who could make use of section 25.1. It is the same definition, but it certainly covers the police.
Senator Joyal: Does it cover the civil servant who would be making the false birth certificate, the false insurance card or all the others?
The Chair: In the Criminal Code, section 25.1(1) definition is:
"public officer'' means a peace officer, or a public officer who has the powers of the peace officer under an Act of Parliament.
Senator Baker: The definition of "peace officer,'' in section 2 of the Criminal Code, is pretty expansive.
The Chair: We are not using that one.
Senator Baker: Yes, you are, because public officer is a peace officer.
Ms. Klineberg: I am not sure I understand the question either, but I think part of your question, Senator Joyal, related to the civil servants who produce the documents. That is referred to in the exemption in clause 7 of the bill. There is a separate exemption for the individuals, for example, who work at the motor vehicle licensing bureau or provincial birth certificate registries, the ones who actually make the documents.
There is an even narrower exemption for these people, which only applies to the offence of making the false documents. These people are not exempt from offences of using the false documents — only from section 366, and also only where they make it on good faith at the request of a government agency or department.
The people who manufacture the documents are protected by the exemption provided for in clause 7. The law enforcement exemption, which is a separate issue and of concern because of its relationship to section 25.1, is the exemption provided for in clause 9. They are provided for separately because the elements which give rise to the exemptions are different.
Senator Joyal: Therefore, the point raised by Senator Nolin is still open. There are criminal acts that police have to report to be sure that there is a counterweight in the system to ensure that the police do not go wild and do all kinds of things they think they should be doing. If they have to report it, there is a check within the system on the initiative of committing an offence.
With this one, we give the police a free hand in taking any initiative in relation to getting false documentation. There is no check in the system that they have to report it in the same way they are reporting the other crimes we have granted them the authority to do.
Mr. Kilkie: Essentially, that is correct in terms of the obtaining of the false identification and the uttering of it. In terms of personation of that real person, which has been raised, if that were the case that the police were going to go that step further and pretend to be someone else, that would be the type of conduct that would still need to be addressed through section 25.1.
That would be an offence not covered by these exemptions and, therefore, would go beyond the baseline, the tools required to carry out undercover operations. The use, beyond possessing and having those tools to create the identity, would require section 25.1. I would not describe it as open ended with relation to anything covert in relation to documents. If you got into any of the ID theft offences that are created here, that would still require section 25.1, if those were invoked.
Senator Nolin: I beg to differ, sir. When you read section 368 of the Criminal Code, which is covered by the exemption, you will see that it does exactly what Senator Joyal is saying. Let us read it together.
Every one who, knowing that a document is forged,
(a) uses, deals with or acts upon it, or
(b) causes or attempts to cause any person to use, deal with or act on it, as if it were genuine,
(c) is guilty. . . .
That is exempt.
Mr. Kilkie: I agree.
Senator Nolin: That is our problem. We understand the desire to make it easier for the police to do that; but we have a principle that you asked us to adopt 10 years ago. We have refined that principle. We now have section 25.1 to 25.3 and we are still not convinced we should go on a sidetrack and not respect those sections.
I understand that we have done it in the past. That was your answer two or three weeks ago. You said that we have already done it for other things, such as use of arms.
Well, maybe we should have been more scrupulous at that time. We were not, but today we have a concern. That is the problem we have. We may adopt it on division and ask the chamber to decide.
The Chair: That might be an interesting way to proceed.
Senator Joyal: Personally, I have no objection that the police use false documentation in a covert operation. No one would have any objections to that. However, what we were concerned about 10 years ago and are still concerned about is that when we do that, the system should have a check in itself to ensure that such a practice is not abused.
There should not be a widespread capacity for the police to use any kind of false identity with no check in the system, and they do not have to report it the way we have done in the past. That is our concern. The more we create new crimes and the more we exempt the police with no counterbalance or counterweight in the system, I think we are doing something wrong.
The Chair: I suspect that the officials have given us the answers that they have to give us, and it is now the time for senators to conclude with what they want to do about it.
I have a point, which has to do not with the substance of the bill but with the drafting of it. Throughout this bill, in numerous places, amendments are made to the Criminal Code to insert grammatical errors in the English-language version. These arise, I expect, out of what is sometimes referred to as political correctness, and I should note for the record that I am an ardent feminist and a champion of neutral language but not of grammatical inaccuracy.
The construction that I refer to is the use of plural pronouns on subsequent reference to "everyone.'' For example, everyone commits an offence who, knowing that they are committing an offence . . .
As a general practice, I find it profoundly objectionable. However, in this bill, there is one clause where I think it simply cannot be allowed to stand. That is clause 2, where the proposed language rewrites section 130 of the Criminal Code to say:
Everyone commits an offence who
(a) falsely represents themselves to be a peace officer. . . .
Then we would have (b) say:
. . . uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that they are a peace officer . . . .
If you really want to analyze that sentence, what that now says is it is an offence to induce members of the public to believe that those members of the public are "a peace officer,'' and I do not believe we can allow that to stand.
When we get there, I shall do something that is very rare for a chair, and I shall personally propose an amendment to that clause of this bill, unless I can be persuaded otherwise.
Senator Nolin: In French, of course, it is singular.
[Translation]
The Chair: In French, it is fine. In French they are not obsessed with these matters that end up in extraordinary complications.
[English]
Senator Nolin: It is one person doing one thing, alone.
Ms. Klineberg: As senators are aware, those are the sorts of amendments that the drafters implement in legislation as we work with them on the policy that we are trying to put into drafting language.
I will be happy to bring your comments and concerns, including a transcript of proceedings today, back to the legislation section and the department for their consideration.
The Chair: You could even note that I saw heads nodding around this table when I made my not gentle remarks.
Senator Joyal: Before we go to clause-by-clause consideration, there is the issue that was raised yesterday, as you remember, about the translation of "reasonable inference'' and "conclure raisonnablement.'' Of course and being reckless, en "sans se soucier.''
As much as I might have certain knowledge of the French language, when I read those two sentences, if I had to comment on each of them, I would point out the different implications.
Have you had time to look into that and how we might ensure we are in sync to avoid uncertainty in the interpretation of the Criminal Code?
Ms. Klineberg: This is another one of those unfortunate situations that occurs when we reform the Criminal Code issue by issue, which is that we often face these situations where we are drafting new provisions. We draft simultaneously in English and French, as I am sure senators know, and we work together to try to, obviously, coordinate the new provisions. At the same time, we must take into consideration the rest of the text of the Criminal Code, which is the act in which these amendments will be placed. Therefore, consistency between English presently being drafted in a particular bill and similar English provisions in the rest of the Criminal Code, with the same on the French side, is also something we try to take into account. It is a very difficult balancing exercise. Do you vertically in one bill try to make the English and French accord better with each other if that will raise a conflict with the way French provisions in the bill are read next to similar provisions in the existing Criminal Code?
We tend to err on the side of keeping consistency in the vertical sense. What we are drafting now in English should be as consistent with the rest of the Criminal Code in English and likewise in French. Whether or not that is the right decision in any given bill is a very difficult call to make, but perhaps you can appreciate our objective. If we are drafting similar sorts of expressions as already exist in the Criminal Code, even though the translation of one section to the next might not be perfect, we tend to think it is preferable to try to stay consistent with the phraseology that is already there, each language at a time. That is my best answer to that question.
Senator Joyal: I understand the explanation, but the risk is there that in a situation where a person stands accused under one of those two sections, if you are a lawyer, you would try to plead the interpretation that is more favourable to your client. That is what I would do. Would you, as a lawyer, do the same? Probably. I see Senator Dickson nodding. It seems that we should try to avoid, as much as possible, in the Criminal Code —
Ms. Klineberg: I would add that typically these sorts of issues arise when you are talking about fundamental basic criminal law concepts, such as recklessness, knowledge, intention, things of that nature. Because the concepts are so fundamental to the whole of the criminal law and tend to be rather well understood through the whole of the criminal law, we feel a little bit more comfort that there is an abundant body of jurisprudence on what recklessness means. If everywhere in the Criminal Code recklessness is translated as "sans se soucier,'' then there is a heightened degree of confidence that the interpretations will be the same, even if you were just to look at the words, you might come to a slightly different conclusion.
Senator Wallace: Before I ask my question, a couple of issues I raise relate to some of the evidence we have heard over the last few sessions and undoubtedly will be issues we will discuss in clause-by-clause consideration. Whichever way you wish to proceed, I could raise those issues now with Ms. Klineberg or, if you wish, as we move through clause- by-clause consideration and then perhaps call on her at that time. What would you prefer?
The Chair: Normally, in clause-by-clause consideration, we try to avoid debate for the sake of debate. We have discussions around proposed amendments, if there are proposed amendments.
Senator Wallace: Yes.
The Chair: If not, we proceed. We assume that we have had ample discussion in the committee's proceedings and indeed that debate can continue in the chamber if the bill is passed and goes back to the chamber.
Since I am not exactly sure whether you are talking about generalized debate or specific amendment language, I am not sure what you think is appropriate at this point.
Senator Wallace: Let me clarify. No, it is specific. For example, it is the issue of the concept of recklessness, which we heard quite a bit a bit about.
The Chair: Do you have an amendment?
Senator Wallace: I have an opinion. I would be interested in hearing Ms. Klineberg's comment.
The Chair: I thought she had just made that comment.
Senator Wallace: I have a follow-up question.
The Chair: You get one quick follow-up and then we shall proceed to clause-by-clause consideration of the bill.
Senator Wallace: I will pass on that. The other issue I had related to the use of the term "credit card.''
The Chair: Are you talking about an amendment?
Senator Wallace: Yes.
The Chair: Are you going to propose an amendment?
Senator Wallace: I am not proposing an amendment, but, in view of the evidence we have heard, I wonder what Ms. Klineberg's feeling would be on the use of that term in the bill.
The Chair: Are you talking about changing the definition in section 321 of the Criminal Code?
Senator Wallace: Yes.
Ms. Klineberg: I have one comment that I would like to share with the committee, based on the evidence that I heard, in particular, from Visa and MasterCard. There was a fair amount of discussion and a lot of interest around this committee table to ensure that the notion of "credit card'' could capture emerging technologies. What I would like to bring to the committee's attention is that the definition of "credit card'' is not in the bill. It is in the Criminal Code, but it is outside the scope of this bill. It is located in section 321 of the Criminal Code.
It is my view that a fair amount of flexibility is already built into the definition, provided by some of the terms that are there. For instance, "credit card'' means "any card, plate, coupon book,'' but the definition goes on to say "or other device issued or otherwise distributed.''
It is elements like that which I believe actually do provide the flexibility to cover emerging sorts of technologies. I know that was a specific issue of concern to the committee. I appreciate the opportunity to bring that to your attention.
The Chair: Senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 1 carry? Do we have an amendment?
Senator Joyal: This amendment is in relation to the definition of "identity document,'' a definition that we find in clause 1, which proposes to add section 56.1(3) to the Criminal Code. The definition starts at the bottom of page 1 and it goes on to the top of page 2.
The amendment would be to add "death certificate'' after "a birth certificate.'' The top phrase of page 2 starts with "a birth certificate.''
During the course of our testimony hearing, it was recognized that a death certificate that is issued under the government authority contains personal identity information that might be used to recreate the existence of a person who is dead. It is an important document just as the birth certificate is.
The first amendment would be to add "a death certificate'' after the words "a birth certificate'' on the first line. That is the substance of the first amendment.
The Chair: We have before us is phrased as one single amendment. Before you read that into the record, having moved it, perhaps you could talk about both parts.
Senator Joyal: The second amendment is in relation to the identity documents refers to "an employee identity card that would bear the photograph of that employee and the signature.''
What is important is that in that definition we include the health insurance card. The health card normally contains the owner's photo and signature, which allows the owner to present to the hospital or a doctor. The same applies to the employee identity card that bears the same photograph and signature. That identification could provide access to many sensitive areas of government.
The proposal is to add, at line 5, on top of page 2, after "Indian status'' the word "or an employee identity card that bears the employee's photograph and signature.'' We all know that I could show you my senator card; the law Clerk of the Senate could show you his identity card that gives him to access to very sensitive areas of government operation. There is no doubt that someone who would like to use the identity of someone else could use that card with all kinds of wrongful intentions.
It is an important document and we propose that it could be added to the list of documents that pertain to identity.
The Chair: I will ask you now to read your motion for the record. We can then go to senators who wish to discuss this motion.
Senator Joyal: I move:
THAT Bill S-4 be amended in clause 1, on page 2:
(a) by replacing line 1 with the following:
"a birth certificate, a death certificate, a passport as defined in''; and
(b) by replacing line 5 with the following:
"status in Canada, a certificate of Indian status or an employee identity card that bears the employee's photograph and signature,.''
[Translation]
The Chair: In French, we say "on tient pour acquis''?
Senator Joyal: In French, it is moved:
THAT Bill S-4 be amended in clause 1, on page 2,
(a) by replacing line 1 with the following:
"a birth certificate, a death certificate, a passport as defined in''; and
(b) by replacing line 5 by the following:
"status in Canada, a certificate of Indian status or an employee identity card that bears the employee's photograph and signature,''.
[English]
The Chair: Senator Watt wishes to participate in the debate.
Senator Watt: I would like to have an explanation. What is the Indian status certificate? What is the purpose behind that?
The Chair: I think status Indians have cards saying that they are status Indians, do they not, Ms. Klineberg?
Ms. Klineberg: Yes. That is presently in the bill.
Senator Watt: I know it is in the bill.
The Chair: It is one more in the long list of government identity cards.
Senator Baker: There is a certificate for Indian status, is there? That is what Senator Watt is asking.
Ms. Klineberg: That is my understanding, yes.
Senator Watt: What does that mean?
The Chair: The purpose of this section is to identify an Indian status certificate as one of the documents that it is an offence to forge or have illicitly.
Senator Watt: I do not know whether such a thing exists. That is why I am asking. The witness is nodding.
Ms. Klineberg: We developed this list in consultation with a host of other federal departments. The Department of Justice, where I work, does not have responsibility for any of these documents, so we worked together with other departments to identify which were the federal government-issued documents that should be included in this list. Unfortunately, I can say only that the Department of Indian Affairs and Northern Development advised us that this document should be included on the list because it is used as an identity document.
The information I have is that there is such a certificate but, unfortunately, I am unable to provide you with the details.
Senator Watt: It does not eliminate my worries, but that is okay. You are talking about a membership card, not a status card. If that is the case, and if you are to put it in there, why not Inuit?
The Chair: If the language is in some way inadequate, we are not in a position to make that determination this morning. Even if this bill passes with this language in it in committee, it is still before the Senate and can be amended if we determine that it should be amended.
Senator Watt: All right; I will let it go.
Senator Wallace: Senator Joyal, I will address your suggestion to include a death certificate. At first blush, it has a reasonableness to it because it is a government-issued certificate. However, it is different from all the other documents because the person or persons who would be in possession of that certificate would not be the person named, for obvious reasons. All of the other documents would be in the possession of the person identified.
Given that and, I suppose, technically, since that certificate would always be in the possession of someone else, perhaps it could be argued that the offence has been committed. I would suggest that because a death certificate is so different from all the others, that it not be included. The nature of the certificate is different.
The Chair: When Senator Joyal first made this suggestion, my initial reaction was similar to yours but then I thought, wait a minute: The idea is possessing for an unlawful purpose, and a death certificate could be used to claim a legacy or claim access to someone else's assets, for example, by alleging, my grandfather is dead, when in fact my grandfather is not dead.
Senator Wallace: The information on the death certificate would fall within the definition of identity information as defined in the bill. Effectively, that information would be used and if it were used for a fraudulent purpose, it would be captured by the bill.
Ms. Klineberg: This specific offence, unlike the other ones, does not require proof of there being an unlawful purpose.
The Chair: — without lawful excuse.
Ms. Klineberg: That is true but there is no need to prove an unlawful purpose.
Senator Joyal: It seems that if a person wants to create an identity using someone else's information, the death certificate is a prime instrument to use. If a person wants to recompose the identity of someone who never existed to create a new person, the information on the death certificate might be used as a prime source of information precisely because the person is dead. This document is of particular interest to anyone who wants to forge the identity of a new person or to subsume to someone who is dead. We all know that during elections, the first substitutions of persons were through the names of the deceased. It is so obvious that I do not see why we should omit that document from the list.
Senator Wallace: I will reiterate: by its nature, the death certificate is different from all other documents listed in 56(3).
Senator Joyal: I agree, but it is a government document, which is the important element. It contains sensitive information for anyone who might want to assume the identity of someone else or to create a new person. That is why it is an important document.
The Chair: Is there further discussion?
Senator Nolin: Senator, in the Province of Quebec a notary will ask for that document when he handles the estate of a deceased person. It is an important document.
Senator Joyal: In Quebec, one must present the funeral director with the death certificate before the funeral preparations can begin. The funeral homes are compelled by Quebec regulations to obtain that certificate before proceeding to ensure that the person is truly dead.
Senator Wallace: Your other suggested amendment, senator, refers to the employee identity card. Where would that be inserted? I want to be sure that I am clear on this. Would it be in proposed section 56(1)(3) and after which words?
Senator Joyal: Are you on page 2?
Senator Wallace: Yes.
Senator Joyal: At line 5, which begins,
"status in Canada or a certificate of Indian status, ''
I propose that the words,
"an employee identity card''
follow immediately after that line.
Senator Wallace: There is no question that the identity card is issued by the department or agency and not by a private employer.
Senator Joyal: Absolutely, yes. In line 6, it would come after,
"issued or purported to be issued by a department or agency of the federal government or a provincial government. . . .''
It bears only to a public identity card provided by a government agency, be it provincial or federal, to an employee in the form of a card with the photo and the signature. Normally, the holder of such a card is generally a full employee who has gone through the administrative paperwork and is under contract with the government.
The Chair: Are we ready to proceed to the vote on the amendment? It has been moved by Senator Joyal that Bill S-4 be amended in clause 1 on page 2 — Shall I dispense?
Hon. Senators: Dispense.
[Translation]
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
[English]
The Chair: Carried.
Senator Joyal: I have another amendment to clause 1 that also pertains to identity documents.
On line 5 of the definition, at the top of page 2, the amendment is to add the words:
. . . any similar document before issued or purported to be issued by a department or agency of the federal government.
The Chair: Senator Joyal, since we have just amended line 5, might I suggest that you amend your formulation before you move it, rather than replace line 5, to replace line 6 with the following:
. . . for any similar document issued or purported to be issued . . .
Senator Joyal: That is it, yes, by replacing line 6, because now we have adopted amendments that will change the line numbering. Essentially, the substance of the amendment is to have the words:
. . . any similar document . . .
That is a federal or provincial government document issued by departments or agencies.
When I say "any similar document,'' I mean that in the years to come, the governments will issue different documents that will contain identity information. We know that they are identity documents and we know that they contain sensitive information that could be used by anyone who wants to assume the identity of someone else. Essentially, that is the purpose of the amendment.
The Chair: Then in lines 8 to 10, you would be taking out the words "or any similar document''?
Senator Watt: Let me understand — "status in Canada, certificate of Indian status or any similar document.'' When you say "any similar document,'' it is to replace, not to put in; is that what you are saying?
The Chair: No. What I suggested, and what Senator Joyal agreed with, is that instead of amending line 5 again, which will get very complicated, that we amend line 6; or that he propose an amendment to line 6, so that what we just did to line 5, which includes the reference to a certificate of Indian status, would remain.
Senator Watt: You also said "any similar document.'' That particular concept probably will answer the concern that I had earlier. However, I want to be clear that we do have membership cards, which indentify us as status Inuk.
The Chair: Are they issued by a government?
Senator Watt: What we started to do now is to put a lot of information into those little cards. It is all about your life — who you are, what you do, what your benefits are and things of that nature. It is full of information. That new technology is coming. Will that be taken into account when you use the words "any similar document''?
Senator Joyal: Yes, Senator Watt if a government department or agency issues them. They have to be issued by a government department or agency or a provincial government. If a band or a First Nation issued an identity document, it would not be covered by that definition because it is not a government document. For the purpose of belonging to a nation and being recognized by a nation, it would be the prerogative of a nation to issue such a document; but for the purpose of the Criminal Code, it would not be covered. It is quite clearly stated it has to be delivered by a federal or provincial government department or agency.
Senator Watt: The information about medical and things of that nature — the banking, real estate or whatever that might be — is a government concern, is it not?
Senator Joyal: It is a government concern, but it is not a government document per se; it is not issued by a government agency. If it is issued by the Indian Affairs department, it is a government document in the meaning of the section.
Senator Watt: I will take my chances with "any similar document'' at this point.
Senator Wallace: To go back to the purpose of the bill and the new offence that it creates, it has serious consequences for anyone that is in possession of identity documents or identity information, as defined later. My understanding is that the drafters of the bill were very particular about defining clearly what would be included within that definition of identity document. As a result, there is a very restricted definition, no question. Purposely, I would say, they have avoided including a generalizing reference that would cover anything of a similar nature. I know the reason for that would be that there should not be any potential ambiguity around what would constitute an identity document, because a person in possession of that could face very serious criminal consequences.
I understand where you are going with this, Senator Joyal, and I appreciate that to give flexibility wherever possible and down the road is often a wise choice. In this case, because of the particular nature of the offence, we are creating new ground as parliamentarians, if this bill is approved, in developing this identity theft offence. I believe strongly we should limit ourselves to the identified identity documents to avoid creating ambiguity.
Your suggestion is well intended, and I understand why you suggested it. However, to use the phrase "or any similar document,'' as we have heard from witnesses yesterday, lawyers have a field day with those types of phrases. I believe it is important we get this bill, maybe with some modification, into law and do it as quickly as possible. However, I think we should do it in a controlled way and avoid such ambiguities.
Senator Banks: I hope I am not going to muddy the waters too much. First, with respect to the present amendment, Senator Joyal, does the word "provincial,'' by definition, include territorial?
Senator Joyal: In the Interpretation Act, yes.
Senator Banks: Thank you. Second, related to what Senator Wallace just said, the documents referred to in this bill are very clearly defined in the proposed section to which he is referring, 56(1)(3). They are, in fact, exclusively defined. Therefore, things by which people might identify themselves, which cannot now be contemplated by us because they are in forthcoming technology about which we know nothing, would almost by definition be excluded from the effect of this act.
Yesterday, I mentioned that I will be moving an amendment later on that would have the effect of taking into account future hypothetical, unanticipated-now means of identifying. My cat has a document in his ear. I do not know if that is a document, but we will soon be identified by means that none of us here can possibly, in our wildest dreams, contemplate.
Just to remind senators, I am talking about on page 6, in 402.1, inserting after the word "type'' on the very bottom of the page, the words "whether or not. . .''
The Chair: Please, Senator Banks, we are limited to time.
Senator Banks: However, my same concern applies to section 56.1(3) because it is very definitive and it thereby excludes any future technology. I guess I am asking if we can revert to this, notwithstanding that we might approve it now because my same concern applies.
The Chair: A committee is master of its own destiny, but you would have to seek the consent of the committee to go back and reopen clause 1.
Senator Banks: I guess I will do that at the time. Thank you.
Senator Baker: I wonder about the use of the words "similar document.'' I could not understand Ms. Kleinberg's explanation at our prior meeting in that the documents were identified as being specific and limited in nature for various reasons. What is in the bill is "similar'' or "any similar document.'' That is presently in this bill, but it says "issued or purported to be issued by a foreign government.''
Since the words are there as they relate to documents issued by a foreign government, why would the department be averse to including it as it relates to Canadian documents.
Ms. Klineberg: "Any similar document'' in relation to documents that would be issued by foreign governments is there to avoid the situation where, for instance, a foreign government calls a driver's licence by another name or it contains slightly different information. It is to allow flexibility so that the Canadian documents we have defined, their counterparts issued by foreign governments would be covered, even though they might be ever so slightly different.
It is a different issue than whether other Canadian government issued documents not identified on the list should be subject to the offence. We cannot survey the document issuing practices of every other country and list them. We have to have some sort of generic language capable of saying these are the documents that have been issued by Canadian governments and these are the documents issued by foreign governments that match up. It is still constrained by the nature of the comments that are listed in the offence.
Senator Joyal's proposal is to say not just these Canadian documents but other Canadian government issued documents. There is definitely a difference in the scope.
Senator Baker: Just a second now. "Any similar documents issued by a foreign government,'' but not "any similar documents issued by a Canadian government.''
If you had the wording "any similar documents issued by a foreign government'' strictly within the four corners of what you have already listed, confined to the documents that were listed beforehand in this section, that would be fine, but that is not what it says. It says "any similar document issued by a foreign government,'' which means "any similar document'' could be any number of documents.
The Chair: I think we understand what you are saying, Senator Baker. It is a compelling argument.
Ms. Klineberg: Although I am not in a position to quantify in any way, all I can tell you is based on the legal work we have done on this particular offence, because it contains very little in the way of a fault element — it is simply possession or transfer of these documents — we are of the belief that if you expand it to cover documents that are not presently identified or not presently known, there will be an elevated Charter risk. How high that will be I could not say, but I bring to your attention that it will increase the risk.
Senator Joyal: It seems to me that when it says "any similar document,'' there is no doubt that the scope is wider, but they must be documents in the nature of identification as those listed above. It is quite clear that it is a similar document to the documents listed above. It is not just a congratulatory letter from the Department of Heritage. This would not be a document covered by that definition. It is not a document that establishes the identity of the person, whereby giving it a wider scope relates essentially to a document that bears upon the essential elements of the identity of the person. That is what it means when it says "similar documents.''
The court that would have to interpret that would look into the nature of the listed documents and establish the parameters, what their true nature is, and they would have to compare those types of documents that clearly establish identity with the similar document that is at stake or that they must consider.
Senator Angus: If I were a judge, I would only look at certificates of Indian status. The way you drafted that amendment, "similar documents'' only apply to Indian status.
Senator Joyal: No, they do not. We have fixed that. It is the other document. I think we understand that.
Ms. Klineberg: The argument would not necessarily be that now the scope is overbroad. The argument is more likely to be that now the scope is somewhat uncertain.
In other words, you would be creating an offence whereby if we do not know in advance whether a particular document is or is not covered, then a person may be committing the offence simply by having the document in their possession without it having been clearly articulated whether it is a criminal offence. You cannot say for sure with respect to documents that are not listed.
It is not necessarily that the scope would be too broad; it would just be introducing the element of uncertainty for an offence that does not require proof of a criminal intention. That is the risk.
The Chair: Do you wish to proceed with your amendment, Senator Joyal?
Senator Joyal: We want to be sure that within the constraints of the law, we have the flexibility for future developments that will maintain the objective of the act and not become obsolete because we have new identity devices that governments have put forward.
We cannot even think what type of "identity documentation'' will be available in the future. We must be certain that the Criminal Code does not become obsolete because it does not cover that device.
It seems to me that we are in that type of context. In relation to the uncertainty, the definition of credit card, when you say "any other device,'' to define a card by any other device is very loose-ended information. Later on, we are creating an offence for someone who is holding someone else's credit card. There is flexibility in the Criminal Code.
Ms. Klineberg: Senator Joyal, those offences contain a very distinct mental state. In the case of the credit card offence, it is "fraudulently and without colour of right.'' That is a concrete subject of mental state that must be proven by the Crown.
In the case of identity theft offenses, it is with intent to use the information to commit another offence. This offence is different in that it does not contain that element. That is the only reason the list was limited, because it is really at the very fringes of how far we can go in criminal law. You elevate risk when you introduce uncertainty. I just bring that to your attention.
The Chair: That is an interesting point.
Senator Dickson: Senator Joyal, I do not have your background of 10 years to 15 years on this committee. Would you please look at the brief from the Canadian Bar Association, at page 2, which you have before you, senator.
Under Identity Document Offences, the second sentence of the second paragraph reads, "We support the bill's clear attempt to restrict the reach of these provisions as consistent with concerns we have articulated in an earlier submission.''
That earlier submission was on a similar bill. They expressed concerns at that time. In proposing your amendments, did you give consideration to the issues raised by the Canadian Bar Association in their previous submission?
Senator Joyal: Yes, I considered what the Canadian Bar Association stated. Page 2 proposes a wide range of offences, including selling or offering for sale an identity document relating in whole or in part to another person. Identity documents are defined broadly to include Social Insurance Numbers, driver's licences, health insurance cards, birth certificates, passports or other documents that simplify the entry into Canada, or similar documents issued or purported to be issued by a foreign government.
The interpretation is that it is a wide range of documents. I do not read any argument in their brief that they would prefer to limit the list to documents that pertain to the identity of someone.
Senator Dickson: Are they not saying in the second paragraph: We support the bill's clear attempt to restrict the reach of these provisions?
Senator Joyal: Yes, and I agree.
Senator Dickson: They do not want to expand the list but they want to stay with specificity, as I recollect.
Senator Joyal: It is a point to be argued, as you know. We say "similar documents,'' and the documents listed have a specific nature. They are specific in their content, information and purpose.
If a court were required to establish whether one document is similar to the document on the list, it would go to the one listed. That is where they would find the framework. That is the point. The court would have parameters of reference to establish that one document is similar to a document described and stated in the bill.
The Chair: Colleagues, the discussion has made it plain that we have a policy discussion. Should this list be a closed list or should it be a broader list? The reasons for and against have been outlined. All senators are free to vote as they see fit on this matter.
Senator Joyal, will you move your motion?
Senator Joyal: I move:
THAT Bill S-4 be amended in clause 1, on page 2,
a) by replacing line 5 with the following:
"status in Canada, certificate of Indian status —''
The Chair: No, that is not it. I believe you agreed that it would be clearer to replace line 6 with the following, and you will tell me if this is accurate: "or any similar document issued or purported to be issued by a department.''
Senator Joyal: Yes, that is it. My apologies. I did not have the correction.
The Chair: Is that the amendment you wish to move?
Senator Joyal: Absolutely. I move:
THAT Bill S-4 be amended in clause 1 on page 2,
a) by replacing line 6 with the following:
"or any similar document issued or purported to be issued . . .''
b) by replacing lines 8 to 10 with the following:
"provincial or foreign government.''
The Chair: All in favour of the amendment?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clause 1, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
Senators will recall my remarks on clause 2. Does anyone have propositions for amendments to clause 2? Hearing none, I will move that amendment. I believe I have explained my intent. In clause 2 as it is written, the proposed 1(a) simply rewrites the existing section to insert the grammatical error. However, clause 1(b) makes some changes.
Perhaps we should remove 1(a). I could move that section 130 of the Act be amended by removing lines 20 to 27. Clause 2 of the bill would be amended in line 18 to say:
"Section 130 of the act is amended by the addition of the following:''
Is that legally acceptable language? We would pick up, on line 27 at 130(2), where it states:
"Everyone who commits an offence under subsection (1)''
We would eliminate lines 20 to 27. Does that do what I am trying to do?
Ms. Klineberg: Unfortunately, the copy of the bill that I have does not have the numbers, so I am having trouble following.
The Chair: Please provide Ms. Klineberg with a copy of the bill? Keep Clause 130 as is but the bill proposes 130(2), which brings in the hybrid element and contains no grammatical errors, but eliminates 130(1), which is being amended solely to insert grammatical errors.
Senator Nolin: We will have to amend the introduction of clause 130 (1) because it is a hybrid infraction. We understand what the chair is trying to do, but we will have to forge something.
The Chair: Ms. Klineberg has a proposition. The thought of explaining this to the whole Senate when they do not have the text in front of them is frightful.
Senator Joyal: That would be quite a challenge.
The Chair: I can simplify life, I think. I withdraw my earlier draft motion.
I move:
THAT clause 2 be amended in line 21 to read:
(a) falsely represents himself to be a;
and line 26 to read:
"persons to believe that he is a peace''
Okay? That is acceptable. The clerk has taken due note. Is there any discussion?
Senator Joyal: Why not say falsely represents "oneself'' to be a peace officer.
The Chair: I just want to go back to the original wording of the Criminal Code, which says, "falsely represents himself.''
Senator Joyal: The word "oneself'' is gender-free.
The Chair: It is for the sake of simplicity and moving this effort along. Colleagues, you have been kind in humouring me. Is there any further debate on this matter?
All in favour?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry, as amended?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Senator Joyal: I have an amendment to give effect to the recommendation that we received from the two witnesses from Visa and MasterCard. They argued that the words "including a personal identification number,'' are limited and should cover the overall personal identification information included in the card.
The purpose of the amendment is to substitute the words "including a personal identification number'' with "including personal identification information.''
For the sake of precision, the words "personal identification information'' are defined as "a personal identification number,'' which we had already, "or any other password or electronic information that the credit cardholder creates or adopts to be used to authenticate his or her identity in relation to the credit card.''
It seems to make sense, for the purpose of this offence, to include that information in a much broader term than just the number.
Ms. Klineberg: My only comment is that I wonder if it is not too narrow in that it is a password or electronic information. The one type of information that I believe might be on the horizon would be biometric information, a thumbprint and so on. I am concerned that with this wording you might be excluding biometric information.
Senator Joyal: We could say "any other password, electronic or biometric information.''
Ms. Klineberg: My view is that you could exclude "electronic'' and just say "password or information.''
Senator Joyal: If you feel that covers it, I would agree.
The Chair: Senator Wallace, have you had a chance to reflect?
Senator Wallace: I have nothing more to add to Ms. Klineberg's comments.
Senator Angus: Do you agree to taking out the word "electronic''?
The Chair: I think Senator Joyal has agreed. He will have to read it into the record.
[Translation]
Senator Joyal will read his amendment into the record, but I think he has accepted Ms. Klineberg's suggestion.
[English]
Senator Joyal: Yes, absolutely; I think it covers our intention.
The Chair: Do you wish to make your motion, Senator Joyal?
Senator Joyal: Yes.
I move:
THAT Bill S-4 be amended in clause 4 on page 3,
(a) by replacing line 23 with the following:
"4. (1) The portion of subsection 342(3) of the'';
(b) by replacing line 29 with the following:
"data, including personal authentication information,''; and
(c) by adding after line 33 the following:
"(2) Subsection 342(4) of the Act is replaced by the following:
(4) In this section,
"personal authentication information'' means a personal identification number or any other password or information that a credit card holder creates or adopts to be used to authenticate his or her identity in relation to the credit card;
"traffic'' means, in relation to a credit card or credit card data, to sell, export from or import into Canada, distribute or deal with in any other way.''.
[Translation]
The Chair: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
The Chair: Agreed.
[English]
The Chair: Shall clause 4, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Senator Joyal: On division. I will be candid with my colleagues. I am not sure we should submit the peace officers and others to the same system and regime. I refer to the people who, in the normal course of their duty, have to deal with false identity and false documentation. I do not know if we should subject them to the same system and regime that we established some years ago when we had to deal with allowing police forces to commit crimes.
I will consult with my colleagues around the table on this issue later on. I reserve the initiative of introducing amendments at third reading.
The Chair: Before we do the formal vote, it seems to me that when I present the report, I will have to speak to the report, since we are amending this bill. I was preparing to say, in the course of those remarks, that there might be further amendments coming from members of this committee, in the light of further information.
We have not heard from the Canadian Bar Association but, if we do, and if any member of this committee finds that language persuasive, third reading is available for those amendments to be moved.
It is rather unusual to say such, when you are reporting a bill back. We may have even more amendments going forward. However, I think it would be appropriate in this case and — if colleagues wish — I would specifically mention clause 7 as one of the clauses that may —
Senator Nolin: And clause 9.
The Chair: And clause 9.
Senator Joyal: Nine, of course, is arguable.
The Chair: That said, shall clause 7 carry?
Senator Joyal: On division.
The Chair: On division.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 9 carry?
Senator Joyal: I will make the same comments that I made earlier on in relation to clause 7. Clause 9 could be the object of an amendment at third reading if, after consultation and more study of the amendments, we conclude that we should submit the police forces to a system of internal control on the use of that section of the Criminal Code.
The Chair: I repeat my question: Shall clause 9 carry?
Senator Joyal: On division.
The Chair: On division.
I am assuming that only one person said "on division,'' because if everyone says "on division,'' we have a difficulty.
Shall clause 10 carry?
Senator Banks: I am not a member of this committee. I am today, but not normally.
The Chair: Today, you are a member of this committee.
Senator Banks: I would be perfectly happy to do this at third reading, if you prefer. However, the amendment would be, at the very bottom of the last line of page 6: ". . .information — of a type. . . .'' I would want to insert the words ". . .whether or not now known. . . .'' and then continuing ". . .it is commonly used. . . .''
Continuing to the next page, in the third line: ". . . to identify or purport to identify an individual, including but not limited to a fingerprint, voice print. . . .'' et cetera.
Further than that, chair, I wish to propose an amendment. I am not sure where it should go. It would probably go on page 1, under Official Documents, because we are talking about buggy whips, telex and telegrams. I think this bill ought to say somewhere that:
. . .for the purposes of this act, "document'' means any instrument or device, whether or not now known, issued or purported to be issued or authorized to be issued by the federal government or by a provincial government or by a foreign government, which instrument or device is for the purpose of establishing or proving personal identity.
The Chair: Senator Banks, your use of the phrase "whether or not now known'' may require some legal advice. I do not know whether the officials are in a position to give that advice right now. If they are not, I think I might suggest that you do it at third reading.
Senator Banks: I would be happy to move this at third reading.
Ms. Klineberg: I have an immediate thought, which is that the legislation would be interpreted on the day it was being applied. Therefore, the technology would have to be known at that time, even though it might not be known now.
I understand what you are trying to accomplish, but it feels more like a principle that would be stated outside of the bill rather than one that could be stated inside of the bill. When you are applying the legislation, you are obviously applying it in respect of some technology that must be known if you have a prosecution in relation to it.
It is a kind of a time travel question that I have trouble wrapping my head around. However, it just seems like a phrase that would not make sense on any given day, because on that day, you would have to been aware of the technology.
Senator Banks: I will address the question otherwise.
Senator Nolin: We could use the analogy with crimes created at the same time as the Criminal Code, but with the present technology.
Senator Banks: I will fix it and do it at third reading.
The Chair: We were on clause 10, I believe.
Shall clause 10 carry?
Senator Banks: Would you make a note in your remarks that, as you did before, about the likelihood of —
Senator Nolin: On division.
The Chair: We are carrying it on division.
Shall clause 11 carry?
Senator Joyal: I have an amendment to propose to my colleagues on that clause, if the clerk could distribute the text.
While the copies are being circulated, I will explain the purpose of this amendment. It is not a new initiative I am proposing here. I am looking also at Senator Wallace. I hope you will be around this table in the next five years.
The Chair: For more than eight years, we hope.
Senator Wallace: I will take full advantage.
Senator Joyal: Essentially, we are creating new crimes in an important field where we know information technology is developing rapidly.
The purpose of the amendment is to ask for a committee of the House of Commons or the Senate, or both, to review that legislation after five years. As you know, we are in the process of doing it in the context of DNA. We have done it in relation to other acts of Parliament where we feel that it is helpful for us to come back into it.
We might use that opportunity to make recommendations on adjusting those sections of the Criminal Code to new needs, to the experience that we will have had and lessons that will be drawn from the police forces and the department.
That is why I would suggest that, after five years, we review it. When I say "we,'' I include, of course, the other place — that both houses have an opportunity to review the implementation of those sections.
The Chair: This is the standard wording.
Senator Joyal: That is the standard wording for it. The only thing I would add is "within five years.''
The Chair: Senator Joyal, technically, what you are proposing is a new clause: Clause 11.1. May I suggest that we dispose of clause 11 and then turn our attention to your proposal for a new clause?
Senator Joyal: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
Senator Joyal: I move:
THAT Bill S-4 be amended on page 9, by adding, after line 22 the following:
"REVIEW
"11.1 Within five years after the day on which this Act receives Royal Assent, a comprehensive review of its provision and operation shall be undertaken by the committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.''.
The Chair: Is there any discussion?
Senator Banks: Senator Joyal, would you be as happy if your proposed amendment became clause12, and coming into force became clause 13?
Senator Joyal: Absolutely not. It might be even clearer in the bill. If there is some cleaning of the Criminal Code after five years, it would be easier to simply remove that. As you know, sections that became obsolete are cleaned.
The Chair: Is this a subamendment?
Senator Joyal: It could become clause 12.
Senator Bryden: It says, ". . . operation shall be undertaken by the committee of the Senate. . . .'' I think it should be ". . . a committee of the Senate, of the House of Commons or both Houses of Parliament that is designated. . . .''
The Chair: I think this is the standard wording. We have used it several times.
Senator Bryden: Who is "the committee?''
Senator Joyal: It is the committee designated —
The Chair: — by the Senate or the House of Commons.
Senator Banks: It might not be this committee. The Rules Committee is looking at redoing committees, so it might not be this committee.
Senator Joyal: It could be a special committee formed by the house to review a certain number of provisions of the Criminal Code at the same time. That is why it is preferable to spell it out in the broadest terms possible.
Mr. Kilkie: That is exactly the same text that was used in Bill C-24 regarding sections 25.1 through 25.4 and Bill C- 36 for the anti-terrorism legislation.
Ms. Klineberg: In terms of the wording, this legislation is different from Bill C-36 or Bill C-24 in that there are some new offenses, which are the main thrust of the bill, but there are also other provisions that make technical amendments to offenses that are already in the Criminal Code.
I raise for your consideration whether you want it to be, perhaps not in this motion but when the time came. It is an odd thing to do a comprehensive review on some provisions that are only tweaked, if you understand what I am trying to say.
The Chair: It is easier, from our point of view, looking five years down the road, to say the whole thing and then —
As Senator Nolin rightly points out, the Senate or the House of Commons can narrow the terms of reference if it so wishes or the committee can be very selective in those elements. We may not wish to re-examine the question of "anyone'' and "themselves,'' for example.
Senator Joyal: As I mentioned, in the definition of the terms of reference, we normally do that in consultation when we might want to review other sections of the Criminal Code. I think it is just proper to have that kind of definition of "terms of reference.''
Senator Wallace: As a matter of practice, when I think about that amendment, it certainly makes sense that nothing stays static and we should review laws and see if they are still appropriate as times change.
I am wondering, though, with the practice of the committee, is there any criteria we use in deciding when we use these types of review clauses? That logic would apply to probably every bill that would pass before this committee and before the house. Obviously, everything should be reviewed at some point.
Do we have any criteria as to when we insert a particular review period? Certainly, Ms. Kleinberg's comments highlight that point. This is not dealing from start to finish with one piece of legislation; it is a portion of one. We are suggesting that portion be reviewed.
Are there criteria that we use or should be using in deciding when we put in particular review term provisions?
The Chair: That is a matter for each individual committee to establish, unless you want to change the rules of the Senate. You will be opening a can of worms if you want to do that, Senator Wallace.
In this particular case, in the case of this bill, I think it is probably worth noting that more than one witness has said — for example, only last night the Bankers Association said: We are not at all sure how this will work out in practice, but we really want this bill so please pass it, even though we are not sure how it will work out. That is quite unusual. In my experience, it is not common for witnesses to be quite that blunt.
Senator Joyal: If I understand the precedence — we are in the common law system, at least insofar as the Criminal Code is concerned and civil laws are concerned — it is normal when we venture into a new area, like we did with DNA. It was just starting at that time, and we knew that the technology would evolve. We knew there would be new discoveries that would create a different kind of perspective over the proposed offenses we were including. That is why we started that review some months ago. I think it is proper.
We make recommendations to adjust the system to new needs, and I think it helps the government to come forward with legislation that brings the Criminal Code up to date and not wait until there is pressure, public opinion and so forth.
I think it is our role, when we venture into a new area, to have the capacity to re-evaluate the impact of what we have done. We have good intentions. We tried to make it as close as possible to what is sound criminal policy, but after a while, it is healthy for the Senate to initiate that kind of review. It is part of our capacity.
Most of the time, you will come to understand that senators who do the review are the senators who have adopted the bill, or most of them. In other words, there is an institutional memory. It is easier for us to do it. As I said, you have a future with us so —
Senator Wallace: Thank you. Not to misunderstand my comment, I completely agree with the need to review. It was just for my own knowledge to know what criteria are used, but what you said makes sense and I thank you.
Senator Nolin: By nature, you will see that lawyers will ask the court to interpret, so it is good to put a date in the future in order to wait for the courts to have their kick at the can. Then we will do our review. If everyone is in tune, fine, but sometimes we discover that we are not.
Senator Joyal: There are many examples. Let us go back to DNA quickly. We had a decision that our friend, Senator Baker, pointed out coming from the Supreme Court of Ontario on the destruction of the samples, as you will recall. We had just debated this subject. If we do not have the possibility of re-evaluating how the courts have interpreted the act and how the system has interpreted its role — in the case of destruction, it was more the system than the court per se because the court had ordered the destruction — it is very helpful to see in the future how the act can be improved in that regard.
We have the capacity in this committee to have institutional precedent recited by Senator Banks and Senator Baker, who follow on a daily basis the decisions of the court. It is helpful to keep Senator Baker on the committee when we do our review, especially since he is here today.
The Chair: Senator Baker is our very own Quicklaw.
We have before us a subamendment moved by Senator Banks that the amendment proposed by Senator Joyal be further amended to re-number new clause 12 and to re-number subsequent clauses of this bill in consequence. Is it agreed?
Hon. Senators: Agreed.
The Chair: The subamendment is agreed to. Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 11, as amended — it would now be clause 12. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 13 carry?
Hon. Senators: Agreed.
Senator Banks: As a matter of information, my colleagues will tell you that I always ask this question about coming into force. Why will this bill not come into force on the day it receives Royal Assent?
Ms. Klineberg: We build flexibility only so that we can discuss with the provinces in advance to ensure that they have time to ready themselves for the coming into force of the legislation.
Senator Banks: Thank you.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill as amended carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
The Chair: On division.
Does the committee wish to consider appending observations to the report?
Senator Banks: No.
The Chair: I hear no such wish, therefore, is it agreed that I report this bill as amended to the Senate?
Hon. Senators: Agreed.
The Chair: I thank you very much, colleagues. That concludes our study of Bill S-4, and I shall endeavour to reflect our discussion when I report to the Senate.
We move now to clause-by-clause consideration of Bill S-205, An Act to amend the Criminal Code (suicide bombings). I believe you have all received a copy of the letter in both official languages from the Senate Law Clerk and Parliamentary Counsel confirming that this bill is, in substance, is the same as Bill S-205 of the previous session and Bill S-210 of the Second Session of the Thirty-ninth Parliament. It is identical except for the necessary adjustments for session numbers and dates and that kind of thing to the bill that was studied and passed by this committee in the last Parliament.
Therefore, colleagues, is it your pleasure that we proceed with clause-by-clause consideration of Bill S-205?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
Senator Banks: Is it on division?
The Chair: It is on division.
Senator Wallace: I am new to the process; I hope it did not pass by me. I have two amendments that I would like to propose.
The Chair: You wish to reopen clause 1?
Senator Wallace: Yes.
The Chair: Is it the pleasure of the committee to reopen clause 1?
Hon. Senators: Agreed.
The Chair: Clause 1 stands reopened.
Senator Wallace: Thank you very much.
The Chair: Do you have copies of that amendment to be made available to the committee?
Senator Wallace: Yes, I do.
I propose a motion to amend clause 1 of Bill S-205 as currently drafted to specify that the definition of "terrorist activity'' contained in paragraphs 83.01(1)(a) and (b) of the Criminal Code includes "suicide bombing only when committed in the context of a terrorist activity.''
This amendment would clarify the current text of Bill S-205 and ensure that it is not overly broad or vague but still fulfils its intended purpose. The proposed amendment is designed to provide for maximum precision about what forms of suicide bombing are included in the definition of terrorist activity and make certain that suicide bombings unrelated to terrorist activity are not caught by the definition.
The Chair: Discussion?
Senator Banks: Could you give an example of a suicide bombing that would not be a terrorist act?
Senator Wallace: It could be that someone is in a mental state of simply wanting to do that kind of act. It would be unrelated to terrorism but be an isolated act. It could be a result of mental illness.
The Chair: You mean a person would blow up the brother-in-law at the same time as himself, that kind of thing.
Senator Wallace: It could be that type of thing. It is to ensure that the act is tied to an act of terrorism.
Senator Grafstein: I have no objection to this amendment.
The Chair: You have no objection. That is a most instructive comment.
Therefore, Senator Wallace has read his amendment into the record, I believe. You were doing that while I interrupted you.
Is there any further discussion? Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1 as amended carry?
Hon. Senators: Agreed.
Senator Wallace: There was a second amendment as well, if I could.
The Chair: Is it your pleasure, honourable senators, to reopen clause 1?
Hon. Senators: Agreed.
Senator Wallace: Thank you for your indulgence.
The Chair: No, I rushed you on that last one. I am sorry, Senator Wallace.
Senator Wallace: I would like to propose a second amendment for this committee's consideration. This amendment concerns when Bill S-205 comes into force. As currently drafted, Bill S-205 will come into force when it receives Royal Assent. I would like to move a motion and add a new clause 2 to the bill that it comes into force on a day to be fixed by order of the Governor-in-Council. This amendment would provide for maximum flexibility and would offer a window of opportunity to notify the provinces before the bill comes into force. Adopting proposed clause 2 would also mean that there would be time to engage Canadians in a dialogue on the background behind the bill's intent before it takes effect.
Again, I apologize. I should have circulated this earlier.
The Chair: While they are circulating, could you read it into the record, please?
Senator Wallace: Yes.
THAT Bill S-205 be amended by adding after line 10 on page 1 the following:
"2. This act comes into force on a day to be fixed by order of the Governor-in-Council.''
The Chair: Now, before I do it in French, I ask that the committee reopen clause 1. Your amendment creates a new clause, so I will put your amendment in abeyance while I ask the committee again whether clause 1, as amended with your first amendment, shall carry.
Hon. Senators: Agreed.
The Chair: It is moved by Senator Wallace that Bill S-205 be amended by adding a new clause, to wit —
[Translation]
In French:
Que le projet de loi S-205, à l'article 1, soit modifié par substitution, aux lignes 8 et 9, page 1, de ce qui suit:
est un acte visé aux alinéas a) ou b) de la définition de " "activité terroriste'' '', au paragraphe (1) s'il répond aux critères prévus à l'alinéa en cause.
[English]
Is there further discussion?
Senator Grafstein: I have no objection to this, and I want to thank the government.
The Chair: Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Does committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that I report this bill as amended to the Senate?
Hon. Senators: Agreed.
The Chair: Congratulations, Senator Grafstein.
Senator Grafstein: Half a decade of work, and partially finished. Thank you so much. Thank you all very much for your patience and support.
The Chair: Colleagues, this concludes our proceedings for this day. Our next meeting will be on Wednesday in this room at four o'clock or when the Senate rises.
(The committee adjourned.)