Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence - May 26, 2010
OTTAWA, Wednesday, May 26, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime) met this day at 4:14 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I see a quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
Today, we begin our study of Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime). It is a privilege and a pleasure for us to welcome our first witness on this bill, the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada.
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Minister, you are such an experienced witness before this committee that I do not have to tell you any of the ritual. I believe you have a statement.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much.
Honourable senators, I am pleased to be here with two representatives from the Department of Justice Canada; Paula Clarke and William Bartlett. I am very pleased to have them join me and I am pleased to have the opportunity to begin the debate on Bill S-9, an act to amend the Criminal Code, (auto theft and trafficking in property obtained by crime.)
When Bill C-26, an earlier version of this bill, was debated in the House of Commons, it received extremely strong support. It went through very well. I would like to review the major components of this bill and I will be happy to respond to any questions that you might have.
With this legislation, the government will update the Criminal Code to address the problems created by complex auto theft rings and other forms of property crime undertaken by organized criminals in Canada today. The bill proposes to create a separate offence of theft of a motor vehicle, which would carry a mandatory prison sentence of six months for conviction of a third or subsequent offence when it is prosecuted by indictment. It will establish a new offence of altering, destroying or removing a vehicle identification number, VIN, and it will make it an offence to traffic in property obtained by crime and make the possession of such property for the purpose of trafficking an offence.
Property crime, and in particular auto theft, creates victims. There is sometimes a mistaken impression that property crime is a victimless crime but this is not the case. Canadians who have had their family car stolen or their home broken into are left feeling violated and out of pocket for, among other things, the insurance deductible, and insurance companies have to cover these financial losses. Some Canadians do not have insurance to cover the loss of a vehicle from theft or to cover the contents of their homes and are left uncompensated.
Auto theft also victimizes Canadians by making our roads unsafe. A study carried out by the National Committee to Reduce Auto Theft reported that in the period of 1999 to 2001, 81 people were killed as a result of auto theft and another 127 people were seriously injured.
When an auto thief is behind the wheel of a stolen car and takes off, seeking to escape detection, the risk of collision and injury increases. Stakeholders, such as law enforcement and our provincial counterparts who are deeply concerned about the impact of auto theft on their communities, have called on the federal government to do something about this serious crime.
This bill is part of our government's efforts to crack down on those criminals who choose to participate in auto theft and in other aspects of serious property crime. It is painfully clear that organized crime is significantly involved with auto theft in this country.
In recent years, our auto theft rates have remained at unacceptably high levels, while the number of recovered stolen vehicles has declined. This indicates an increased involvement of organized crime in auto theft. Law enforcement experts tell us that when a car is not recovered, organized auto theft rings have likely exported it to a foreign country. It used to be that over 90 per cent of stolen cars were recovered. Today that has fallen to 70 per cent, nationwide, with recovery rates varying by cities.
In large cities in Ontario, Quebec, and Nova Scotia, organized crime groups are believed to be more active in thefts, thanks in part to readily accessible ports, which allow cars to be shipped out of the country quickly and with relative ease. Out of the approximately 147,000 automobiles stolen every year, police and insurance experts estimate that about 20,000 of these cars are shipped abroad.
To this end, the creation of a distinct offence of motor vehicle theft sends a strong message to potential thieves that the criminal justice system is serious about fighting theft in Canada. The government's proposed offence would be a hybrid offence with a maximum of 10 years imprisonment on indictment and 18 years imprisonment on summary conviction.
I believe that the creation of a distinct offence of motor vehicle theft will be extremely helpful in assisting the criminal justice system identify repeat auto thieves and target these repeat offenders by imposing a mandatory minimum penalty for those convicted of a third or subsequent offence when the prosecutor proceeds by indictment. It will not matter whether the previous two convictions were indictable or summary conviction offences.
I believe that a mandatory minimum penalty for a third conviction of motor vehicle theft is a step in the right direction for restoring public confidence in our criminal justice system. The problem currently facing the courts is that very often a prosecutor is unaware that the offender is a career car thief. Normally, the offender is simply charged with theft over $5,000 or possession of properties over $5,000 and there is no indication on the available record of the type of stolen property.
A distinct offence of motor vehicle theft will help give the courts a better idea of the background of the offender for bail hearings and sentencing purposes. Indeed, this reasoning holds true for the proposed VIN, vehicle identification number, tampering offence that I will discuss in a moment.
Conviction for either of these offences would more clearly and accurately document a person's involvement in an organized vehicle theft ring as part their criminal record. This in turn would help the police and Crown prosecutors to deal appropriately with those people in subsequent investigations and prosecutions.
The theft of a motor vehicle for profit usually involves an elaborate cycle of theft, disguising the vehicle, and resale or export. One of the ways in which vehicles are disguised and resold is through the tampering of the vehicle identification number, the VIN. There is currently no offence in the Criminal Code directly prohibiting the alteration, obliteration or removal of a VIN. Currently under the Criminal Code, those who tamper with VINs are often charged under section 354, the offence of ``possession of property obtained by crime.'' This offence includes a provision stating that proof of possession of a vehicle with a removed or obliterated VIN is, in the absence of evidence to the contrary, proof that the vehicle was obtained by crime.
However, to address this gap in the Criminal Code, the proposed amendment would make it an offence to wholly or partially alter, obliterate or remove a vehicle identification number on a motor vehicle. The penalty for the proposed VIN tampering offence would be a maximum of five years on indictment, or to a fine of up to $2,000 or imprisonment for six months or both on summary conviction.
There is, however, a range of lawful activity that would include the alteration of a VIN, such as collision repairs. To this end, the provision would also contain an express exception stating that no person shall be convicted of the proposed offence if the act that is alleged to constitute the offence is for the purpose of legitimate motor vehicle repair or maintenance or any other legitimate purpose.
Organized crime is also involved in auto theft and property theft in general, through the trafficking of property obtained by crime in chop shops or other theft rings that deal with a wide variety of stolen property.
The proposed trafficking offences in Bill S-9 would begin to address these problems. Trafficking in property obtained by crime, along with other criminal activity such as drug trafficking, prostitution and fraud, is one of the many activities that makes organized crime profitable in this country. The bill would make it a crime to traffic in, or possess for the purpose of, trafficking property obtained by crime, including importing or exporting.
Currently, section 354 of the Criminal Code, the general offence of possession of property obtained by crime, which carries a maximum of 10 years for property valued over $5,000, is the principal Criminal Code offence that is used to address trafficking in property obtained by crime. However, this possession offence does not adequately capture the full range of activities involved in trafficking.
The proposed offences would provide a wide definition of trafficking that would include the selling, giving, transferring, transporting, importing, exporting, sending or delivering of goods or offering to do any of the above, of property obtained by crime. This new law would target all the middlemen who move stolen property, from the initial criminal act through to the consumer.
Both proposed trafficking offences have higher penalties than the existing offence of possession of property obtained by crime. If the value of the item trafficked exceeds $5,000, anyone convicted of this offence could face up to 14 years in prison. If the value does not exceed $5,000, it would be a hybrid offence and subject to imprisonment up to five years on indictment or six years on summary conviction. This penalty would be consistent with the existing penalty scheme already in the Criminal Code.
It is also worth noting that if any indictable offence is found to have been committed for the benefit or at the direction of or in association with a criminal organization, an additional offence would apply. It would be open to the Crown to prove the additional element of a link to organized crime and obtain a separate conviction under section 467.12 of the Criminal Code. The maximum penalty for this offence is 14 years, which, as you I am sure are aware, must be served consecutively to any other offence for crime.
The proposed trafficking offences would also respond to the concerns of stakeholders such as the Insurance Bureau of Canada that has long advocated for stronger enforcement to prevent the export of stolen vehicles. Under the Customs Act, in order for the Canada Border Services Agency to apply the administrative powers of the Customs Act to the cross-border movement of property obtained by crime, such goods must first be expressly classified somewhere in federal law as prohibited goods for the purpose of importation or exportation. This bill would supply that classification provision.
Today, Canada Border Services Agency officers are only authorized to examine and detain goods entering or exiting Canada in order to determine whether or not the importation or exportation complies with federal legislation controlling the movement of goods across our borders.
The mandate of the CBSA does not include a broad law enforcement role, and its officers therefore have limited authority to deal with the movement of stolen property. The express prohibition provision in this bill would allow CBSA officers to examine and detain stolen goods, which could ultimately result in the police laying criminal charges. With this proposed amendment, the CBSA officers could identify targets, conduct examinations and detain these goods. They would then search law enforcement databases to determine whether the goods had been reported stolen, and refer the case to the police in appropriate cases.
This government has been hard at work introducing legislation that will help keep Canadians safe from organized crime. In 2009, Bill C-14 came into force. It now provides the police and justice with crucial new tools in our fight against organized crime. Our Tackling Crime agenda is broad and we remain committed to moving forward to ensure safe streets and communities.
Honourable senators, with Bill S-9, this government has continued to show its commitment to make Canada safer by taking necessary steps to help combat property crime, including auto theft. This legislation will be a strong measure to help law enforcement and prosecutors deal with criminals who commit auto theft and traffic in property obtained by crime. It is widely supported by Canadians and we owe it to them to bring this legislation into law as soon as possible.
The Chair: Thank you, minister. We will begin questions.
Senator Wallace: Thank you, Mr. Minister. It was a very good presentation and we certainly appreciate you being here today.
As you mentioned, this bill very much responds to the opinion of law enforcement officials across the country and the shortcomings they have recognized in the Criminal Code in dealing with auto theft offences.
Could you give the committee a bit more detail on the types of discussions that have taken place across the country with law enforcement? It strikes me this is not a made-in-Ottawa solution but rather it is responding to a problem across the country.
Mr. Nicholson: Senator, first let me thank you for all you do in terms of moving this country's criminal justice agenda forward.
I can tell you, when I get together with law enforcement agencies, it is the exception when they do not mention auto theft. They are very clear that the laws are outdated and do not respond to the challenges they face.
Depending on where I am in the country, I hear about organized crime chop shops and export schemes that move automobiles and automobile parts out of this country. I hear about the deficiencies in the current law. Law enforcement officials wonder how many people possess the stolen goods. They talk about the chop shops and remark that they may arrest the people at the chop shop but miss many others involved in the crime.
Making auto theft a separate offence has been very well received. I can point out the comment made by a former Attorney General of Manitoba who said there is a separate section in the Criminal Code that provides for the theft of a cow, but there is no separate section for the theft of an automobile.
I will give credit to my provincial counterparts in both Manitoba and Saskatchewan in terms of what they are doing concerning intervention. They have also implemented different procedures to try to intercept, stop and reduce auto theft in a number of their communities. However, they were very clear that they want to see something like the bill we have before us here today.
The bill was very well received. Again, when I get together with law enforcement, not mentioning auto theft is the exception. That is another very good reason to pass this bill.
Senator Wallace: As you point out, minister, with this and other bills initiated through your department, there seems to be a focus on organized crime. There are serious issues in the country and we have to adjust the Criminal Code and other laws to adapt to those issues.
I wonder if there is anything more you would like to add in relation to the impact you see this bill having on organized crime. I have recently heard that, on average, 400 auto thefts occur in this country each day. Obviously, many of those thefts relate to criminal organizations. Therefore, I wonder about the impact you hope this bill would have on criminal activity.
Mr. Nicholson: That is part of that message. The face of crime in this country has changed over the last 20 or 30 years. The operations law enforcement agencies are going up against are becoming more sophisticated. I hear this all the time. Crime is becoming borderless, and this is why you have the provisions with respect to Canada Border Services Agency.
It is not just a question of someone stealing a car and trying to sell it to someone in the next town. I pointed out that 20 per cent of these cars are being shipped out of the country; they are gone. This is why they cannot be located.
They all tell me the same thing. They say that even though crime is becoming more sophisticated, the Criminal Code has not been updated in over 100 years. You have to update the laws to respond to the current challenges. That is what they were telling me. If you have any witnesses from the law enforcement side, I am sure they will confirm what I am telling you.
Senator Baker: I would like to get to some law enforcement testimony that has been critical to this bill. Minister, I would also like to have Mr. Bartlett answer some of the questions, with your permission, because he gave testimony before the House of Commons committee and Justice when it dealt with this bill just a short time ago. Mr. Bartlett is well known; he has been quoted by superior court judges recently in testimony before this committee, and he is held in great esteem.
First, the Canadian Construction Association and an organization which has the abbreviation OSWCA are quoted on page 9 of the June 8, 2009, House of Commons Standing Committee on Justice and Human Rights. A gentleman of 32 years of law enforcement experience with the OPP said:
I've spoken to investigators with the Insurance Bureau of Canada, to the officer in charge of the provincial auto theft team in Ontario, and to auto theft investigators with the Peel Regional Police and York Regional Police, who all share my concerns about the new and unwarranted defences that criminals will have if proposed subsection 353.1(3) becomes law.
. . . the addition of proposed subsection 351.1(3) will create a series of new defences for criminals engaged in automotive and construction equipment theft. We urge the committee to delete proposed subsection 351.1(3).
I would like a response to this statement.
Mr. Nicholson: Again, the honourable senator is referring to the defence of someone who is changing the vehicle identification number for legitimate purposes. It seems to me, senator, it is only reasonable that you do not want to be capturing people who are not part of organized crime and people who are not running a chop shop.
I think I am getting the drift. You would like us to be toughening up these things even more, having fewer exceptions. Is that the trend now? I would be very happy to hear that trend from you, senator. Again, I think you will see it is worded very carefully. Mr. Bartlett or Ms. Clarke may want to comment.
However, we would not want to have people who are legitimately part of a law enforcement agency or assisting law enforcement agencies to be caught under the new offence of altering a vehicle identification number.
Senator Baker: This is someone who has been with the OPP for 32 years, quoting the York Regional Police and the Peel Regional Police.
Let me get to our committee meeting recently on this very bill. We had before us Detective Sergeant Stephen Boyd of the Organized Crime Enforcement Bureau, Ontario Provincial Police. On December 10, 2009, before this committee, he said on page 13 and 14:
In my view, the bill inadvertently creates obstacles to the enforcement of criminal behaviour through exemptions. . . the legislation creates legal exemptions to a prohibited act.
We believe that this clause will reduce the reasonable expectation of conviction.
That is testimony from the Organized Crime Enforcement Bureau of the Ontario Provincial Police. That organization takes strong exception to this subsection in the bill, which they claim is providing a defence. What would be the response to that kind of criticism, Mr. Bartlett?
William Bartlett, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Senator, there is not one vehicle identification number on a vehicle, to start with. There are up to 18 VINs on various parts of the vehicle.
The Chair: Are they the same numbers?
Mr. Bartlett: The numbers are the same. We think of the identification number that you see on the dash of your car, but that same number is stamped on the engine block and various other places. It will be commonplace, in the normal activities involving repairs, particularly after collisions, or being modified that one or the other of the VINs on the vehicle will be removed or obliterated. In order to create a viable offence, we have to describe very carefully in a very targeted fashion, exactly what an unlawful removal would be or, as this proposed section would do, simply make it an offence to remove or alter or obliterate the VIN and then provide appropriate exemptions for the legitimate activity.
With respect to the police witnesses you have heard from, their concern is that the defence might be misused. I do not think they would have any quarrel with whether or not regular maintenance or legitimate modification of a vehicle for the owner of the vehicle would be an appropriate exemption in the sense that you do not want to capture that activity. You want to capture only the removal for the purposes of auto theft, but you cannot simply describe it that way. They are concerned that the defence might be misused, but we have not heard Crown attorneys say that they feel they would not be able to effectively separate it out. In the ordinary course, these exemptions will not apply, and they do not seem to feel that it would make it too difficult to prosecute if the defence suggests that they had some legitimate purpose. They feel the circumstances will make it clear whether it is a legitimate or illegitimate activity.
Senator Baker: Mr. Bartlett, I am sure that both you and the minister would agree that the owner search of the VIN number on the vehicle used in the recent bombing attempt in New York at Times Square, led to the arrest of the criminal. The secondary VIN number on the mount to the engine was intact, although the original VIN on the top of the dash had been scratched out. A search of that VIN led to the subsequent arrest.
I am concerned that the police are making this claim before this committee and the house committee. Further, I was surprised to see the same crime division saying this, after describing the theft of Eric Lindros's Corvette and all of the VIN numbers removed from it. Mr. Boyd said:
I have spoken to several Crowns in the province, and they all advised me that that was their opinion as well.
That concerns me just as much, because neither you nor the minister lays the charge. The police lay the charge. As you say, the Crown proceeds with the prosecution. If they are all saying that this clause bends over backwards to defence attorneys, why is it there? You already have ``without lawful excuse'' in the same section, which was not in the original Bill C-64 in the Thirty-eighth Parliament when this was introduced.
Mr. Bartlett: In an earlier version, the VIN tampering offence was constructed differently so that it created a sort of reverse onus, and that was of concern in terms of possible Charter litigation and Charter challenges. This construction, as I said, simply starts with a very broad prohibition that cannot stand on its own. If you simply left subsection 1 here and said it is an offence to ever remove, alter or obliterate a VIN, you would have a completely unusable provision, because that happens commonly, regularly, every day, in normal lawful activity. Subsection 3 carves out, in very express terms, and makes it clear to everyone, both those who enforce and those who might see themselves being subject to this offence. It makes clear that it simply does not cover the everyday legitimate work that occurs in a garage that deals with a car that has been involved in a collision or where major parts have to be replaced. It simply supplies the exemption that makes the original prohibition one that can be justified as valid criminal law and is compliant with the Charter requirements.
Senator Angus: Minister, I share your gratification at the fact that Senator Baker is so anxious to make these laws as tough as possible. If there is a way to make them tougher by either amending or changing the burden of proof on the subsection in question, I am sure you would not object too much, I certainly would not.
In your opening remarks, you said the reason behind this legislation is to stop or minimize the theft of vehicles because the laws are not tough enough. Is the prime reason for the great volume of auto thefts the weakness of the present legal regime, or are there other more sinister reasons?
Mr. Nicholson: I think it is a little more complicated than that, senator. Two types of activity are going on in this country, and this bill addresses both of them. On one occasion, we wanted to address one part of it, and then I asked why we are not doing the other, so now we have everything.
We are talking about two types of crime. One is the organized crime that steals a car for the purposes of chop shops, exporting the car or parts, or somehow recycling the stolen car. That is part of it. I have heard loud and clear from law enforcement agencies in a number of major Canadian cities that this is a big problem. As well, I hear from other individuals that there are people who are unsophisticated, not part of organized crime necessarily, that will steal the car and abandon it, steal the car again, that sort of thing. The bill addresses both aspects of that crime.
We have talked at some length about the organized crime part of it, but, again, making it a separate offence allows the Crown attorney to know what they are talking about. I have had Crown attorneys tell me they are not sure what the individual has been found guilty of, and guess what? It is actually more dangerous to steal a car than many times stealing other types of property in this country. Why? Because many times, you are putting people at danger. People get killed when people drive recklessly or are trying to escape detection. Having this as a separate offence allows everyone to know what he or she is dealing with. If this individual has taken the wrong path into the career of serial car thief, the Crown and everyone should know about that involvement.
Even the provision of making it mandatory jail time of six months for a third conviction — and this is three separate convictions for auto theft — is for someone with a serious problem. We have to address this problem and send out the right message that this is completely unacceptable behaviour. Therefore, we give the discretion to the Crown attorney to proceed by indictment in appropriate circumstances and that there will be appropriate penalties. We have to address both parts.
One of my colleagues, Andrew Scheer, introduced a private member's bill with respect to auto theft, for the first time making it a separate offence within the Criminal Code and I have congratulated and thanked him for that effort. He, among my other colleagues, is very pleased to see it is all now part of this bill.
I can say that whether it is law enforcement agents or Crown attorneys, they are very pleased to see a separate offence against vehicle identification number tampering. They are very pleased to have that as a separate offence and I can say that it will be very well received to have this as a separate offence with separate penalties for auto theft. All these are steps in the right direction, senator. We have to move on these items.
Senator Angus: My second element had to do with that extra for the third offence, with which I have a problem. Why not the second offence and why not 12 months or two years, but you have addressed that issue.
Mr. Nicholson: I will address that if you want.
Mr. Nicholson: I know what Senator Baker will say: Next round he wants a mandatory jail sentence for people convicted for the first or second time for auto theft, and I am going to resist him on that point. I am going to say no, the Crown attorney is in the best position to determine these on a case-by-case basis.
Senator Angus: I come from one of those cities mentioned in the literature as being the two main hot beds of auto theft: Toronto and Montreal. I will not tell you which city I come from. Is Winnipeg mentioned in there too?
I have actually, just by chance in the last year, been involved in three situations either as a witness or through a family member because there are gangs on the street everywhere. A family member would drive up, leave the key in the ignition, take a bag of groceries off the back seat and go into his or her home to drop them, and literally, 10 yards away someone zips into the car and drives away.
The reason for my first question is I think it is because the penalties, as you have described, are so weak. It is not because autos are better to steal than television sets or stamps or jewellery.
Is this in accord with your knowledge? There is no doubt it is rampant today and in broad daylight they jump into the car. Organized people obviously hire this network of people who are willing to perform that type of crime.
Mr. Nicholson: I have spoken to people involved in law enforcement in both Manitoba and Saskatchewan. They were good enough to talk to me about some of the efforts that they are making to try to cut down auto theft in their communities. I have been very impressed by what they are doing and I think they are making a difference, if you go back three or four years in terms of the number and the volumes.
I am not discounting or downplaying the problem, it is a major problem, and I have indicated to my colleagues, provincial attorneys general, that yes, we will move on our end of it. However, in my discussions over the years, I have not encountered unanimity that first time offenders should receive mandatory penalties. A number of them said there are other ways of dealing with an individual who has made this type of mistake, but for the most part, they said at some point in time you have to deliver the message that this cannot go on — and they all make the point — that stealing a car is not just like stealing $10,000. You are actually placing people in danger when people are manoeuvring through your community in a stolen car.
I hear that quite a bit with respect to the individual who steals a car, who may or may not be part of a gang or organized crime, but in some other communities, and you mentioned in your opening comments, I do hear about the very sophisticated operations that the chop shops and the import-export business involved. There are a number of different aspects to auto theft and I am pleased that this bill captures all of them.
Senator Angus: Thank you. I agree with you.
Senator Lang: I am a victim of car theft. I have had the experienced the procedure of having to get restitution and all the various other things such as dealing with the vandalized vehicle. The time that you put into it from a personal point of view in itself is a sacrifice. I can sympathize with your comments about Canadians being victims.
I would like you to elaborate on the fact that 90 per cent of the vehicles were recovered a number of years ago and now we are down to 70 per cent, which is significantly different from the point of view of numbers being recovered. We are at 20,000 vehicles being exported from this country at present, in part because of the laws that are in place.
Have the law enforcement agencies that you have spoken to, and the provincial authorities, given any indication to you that with the passage of this bill — and maybe even a tougher bill once Senator Baker gets finished with it — that they will be able to negate the 20,000 vehicles shipped out of this country? Will passage of this bill put a number of the crime rings out of business?
Mr. Nicholson: In my opening comments, I touched on the increased sophistication in this business and that it knows no borders. I commented that there are large-scale operations and the present provisions in the Criminal Code are not adequate to stop these operations. One provision that is very well received concerns the changes with respect to the duties and the ability of agents of the Canada Border Services Agency to intercept property that is being shipped in and out of this country. Senator Angus mentioned containerization. I have heard it again and again that the present laws are inadequate in giving the borders services agencies the ability to look and find out what is going on in relation to what is coming in and going out of the borders of this country. A car in and of itself is not a prohibited good. It is not like an illegal drug or an illegal gun. The laws have to be changed; they have to be updated. I have said to those who work with me putting this together that it is one of my favourite parts of this proposed legislation. I am very interested in the new provisions of the Criminal Code and I am pleased to have this bill. Changing the provisions with respect to Canada Border Services agents — and my colleague the Minister of Public Safety has direct responsibility — is one of my favourite parts of this bill because I have heard it again and again that these cars are being shipped out of this country and the present laws are completely inadequate to deal with this activity.
Again, when you have these witnesses — and I hope you do not have too many — I do not know if you will be able to get the message that this bill is well received and well supported, but I am quite confident that they will tell you the same thing. I am certain that they will tell the committee that this is exactly what we have to have to have because we have to capture all of the activity. You cannot just zero in on part of it.
Even going back to what I was saying to Senator Angus about the individual who steals a car, you need a complete package to deal with that criminal act. Again, I was impresses with my colleagues, particularly in Manitoba and Saskatchewan. I was very impressed by what they are doing to intervene because, again, that is part of the solution. This is one part of it — it is an important part but more has to be done. This bill is complete and it will do the job.
Senator Lang: Does the Canadian Border Services Agency have the manpower to enforce this legislation?
Mr. Nicholson: The minister has assured me that they do.
Senator Runciman: I am not surprised that Senator Baker is a ``hang 'em high'' kind of guy. I think he has raised a legitimate point, if indeed police agencies and people engaged in stopping and curtailing this kind of activity have concerns with the proposed legislation.
You suggest there might be Charter concerns when the legislation was drafted originally. How do you propose to address those concerns?
Mr. Bartlett: My colleague has reminded me of an earlier version. We have looked at several different ways to capture this activity. We dealt with the issue of the very broad scope of removal and alteration of VINs, which, as I said, is an everyday activity in every legitimate body shop and garage in Canada.
An earlier version put in a provision requiring them to prove that the purpose of the removal was to disguise the vehicle. That we heard about from Crown attorneys. They said that would create a real difficulty for them because they would have to prove the specific purpose of the removal. Proving a specific intent is always, as you know, a difficult issue in a criminal prosecution.
The words, ``without lawful excuse,'' are a traditional, time-tested way of dealing with cases where there are rare circumstances that you cannot necessarily even envisage, much less capture in your offence provision, where there will be some lawful excuse the defence can put forward. However, as it is captured in subsection 3 it is not a rare event, but a regular event.
With respect to the police witnesses, I do not think any of them would suggest that it should not be quite acceptable for someone to remove a VIN in the course of regular maintenance, repair and modification of a vehicle. As I said, it is something that happens every day.
I presume they are concerned that such a defence could be abused. However, Senator Baker has heard from Crowns that they are concerned about this. That is not what we have heard. In practice, in terms of the circumstances in which they will be applying this offence, they feel that they can deal quite adequately with suggestions.
If we are talking about a VIN removed from a stolen vehicle, you are starting off with a set of circumstances where it will be awfully difficult to suggest the removal of the VIN was perfectly normal, although there may be circumstances where a garage does it and does not know it is a stolen vehicle. Those are the sorts of circumstances you have to exempt from a very broad prohibition which covers a whole lot of activity that you clearly do not want to criminalize.
Senator Runciman: I have not seen in any of the documentation any reference to auto theft being utilized for the support of terrorist activities. I wonder if there are links. I have read about American so-called care agencies putting stolen vehicles in with relief packages to fund terrorist activities. Is that a concern in this country?
Mr. Nicholson: Law enforcement agencies in most of the major cities I have visited to speak, talk about gangs, organized crime and criminal activity. I am not ruling it out but, to be fair, I cannot think of an instance at this point in time where they raised a terrorist connection.
Senator Runciman: Will this legislation affect young offenders? There has always been a concern that young offenders are used by organized crime to carry out a range of offences.
If the person is convicted a couple of times as a young offender and, subsequently, convicted as an adult, do the mandatory minimums apply?
Mr. Nicholson: The provisions of the Youth Criminal Justice Act would apply. You will be getting changes to that soon enough. I am guessing you will want me back on that one, as well.
Senator Carstairs: Between 2007 and 2008, the rate of car theft, which Senator Wallace identified as 400 a day, actually decreased by 14 per cent. As of 2008, it was 343 a day. What is the rate for 2009?
Mr. Nicholson: It is 147,000, they tell me, for 2009.
Senator Carstairs: Therefore, it went back up and did not continue to decline.
Mr. Nicholson: They tell me it fluctuates.
Senator Carstairs: I am particularly concerned with the theft-to-order concept, which we have not talked about at all. Yes, there are vehicles that are exported, but there are also rings in this country that are stealing on an ``order'' basis; someone would like a particular SUV, so a car is stolen in Ontario and sold in British Columbia.
Has there been any attempt to look at the people who purchase those cars? I think they know what they are doing. As far as I am concerned, that is criminal activity. Do we have anything to address that particular situation?
Mr. Nicholson: I will refer to proposed section 355.1, possession and trafficking, that there are extensive provisions in this bill with respect to trafficking. It gets everyone and therefore, you will get the individuals who are encouraging someone to steal to order.
Senator Carstairs: I do not think they are necessarily encouraging people. I think that they are approached and told there a really good vehicle and asked if that the kind of thing they are interested in. That person then says, ``No, I am interested in such and such a vehicle.'' Then, magically, two or three weeks later that vehicle is now for sale.
Mr. Nicholson: Those kinds of individuals will not like this bill, senator, I can assure you. This is bad news for them.
The Chair: Would it be worth examining the possibility of making it an explicit offence in that section to solicit someone to do those things? You talk about sell, give, transfer, transport, export, import, send, deliver, deal or offer to do any of those acts, but you do not talk about Senator Carstairs' point.
Mr. Nicholson: ``Or deal in any other way or to offer to do'' any of those acts.
Mr. Bartlett: I think the trafficking offence could well cover these people, but they might well also be guilty of the original theft in the sense of being part of a conspiracy. When they receive the vehicle, they are in possession of stolen goods, which is section 354 and is punishable by a maximum of 10 years.
If you can actually prove that they solicited the theft of the vehicle, it is likely that more than one offence would apply, including potentially the trafficking offence, as it stands.
Senator Joyal: To come back to the impact of the interpretation of proposed section 333.12(2) of Bill S-9, on subsequent offences, it says:
(2) For the purpose of determining whether a convicted person has committed a third or subsequent offence, an offence for which the person was previously convicted is considered to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.
We know that young people steal three out of 10 stolen vehicles. When that happens, we know it is for a joy ride, and sometimes it ends up in a crash. We know that too, unfortunately. However, basically, one third of cars stolen are stolen by youth. If they are found guilty of the offence and they commit such a crime later on in their lives, would the one that would have been committed before the age of 18 be included in the three offences? In other words, when it is a first offence, when you are a youth, you might expect it to be summary conviction, but if that is calculated in the overall three offences, would that be part of the evaluation that the judge would have to make?
Mr. Nicholson: The answer is no, senator. They would be convicted under the Youth Criminal Justice Act, which is completely separate. We are talking about convictions under the Criminal Code. The quick answer is no. I have been told by the chair to keep the answers brief.
Senator Joyal: My next question is about the evaluation of the effect that this bill would have on the prison population. Did you figure out how many more people will have to spend more time in prison if this bill comes into place?
Mr. Nicholson: If you are talking about the third conviction and the six-month mandatory prison, it is at the discretion of the Crown, and they work within provincial resources. Again, senator, it would up to the Crown to determine it on a case-by-case basis.
Senator Joyal: You do not have any statistics?
Mr. Nicholson: No, I do not.
Senator Joyal: Do you have statistics on the nature of the sentences that have been ordered under previous convictions for car theft?
Mr. Nicholson: This is part of the complaint that is constantly given to me. They say that courts do not know whether it is auto theft or not. It is captured under the existing provisions of theft over $5,000, so they are not quite sure what they are dealing with. One of the principal reasons for having it as a separate offence is so future courts will know what they are dealing with. It is not just someone who stole $6,000 cash; it is someone who stole a vehicle and placed the public in danger. We will have a better idea of what we are dealing with, and certainly the courts and Crown attorneys will have a better idea what they are dealing with under the new provision.
Senator Joyal: You contend it is impossible to know, what the sentences for such crimes have been in the past for vehicle theft.
Mr. Nicholson: I did not say it was impossible, senator. I am saying that the complaint I am hearing from law enforcement agencies and Crown attorneys is that they want more information as to who and what they are dealing with. If an individual gets convicted five times for theft over $5,000, they do not know what they are dealing with, so by having a separate offence for auto theft, they will now what they are up against, and so this will be a big improvement.
Senator Joyal: We do not know the impact on the prison population, we do not know about the sentences in the past and we are not sure about the statistics.
Mr. Nicholson: I will give you some good news. My colleague the Minister of Public Safety has assured me that the capacity is there. We will meet these challenges. I can tell you that the provincial attorneys general have indicated to me that they are interested in seeing this bill passed. They say their streets will be safer.
Senator Joyal: I am concerned about that, Mr. Minister, because in the past week we had the provincial ministers of justice and governments being very concerned about the impact of the increase in the prison population in their system, because most of those criminals will end up in the provincial prisons, and the budgetary impact of those bills is real.
Mr. Nicholson: That is right.
Senator Joyal: I am asking a reasonable question.
Mr. Nicholson: I think it is a reasonable question, and I can tell you that when I have met with them and indicated what we are doing in terms of these things, I have been very well received. When I was here getting rid of the two for one, provincial attorneys general were encouraging us to do this. They said it would reduce the strain on provincial resources if would could get rid of the two-for-one credit. I have been very open with provincial attorneys general, and I can tell you they are supportive of us moving forward in areas like auto theft.
Senator Joyal: Last week, the Attorney General of Ontario was on record as saying that the impact the bill will have on the provincial prison population in Ontario is far beyond the means of the province.
Mr. Nicholson: Are you talking about this auto theft bill?
Senator Joyal: I am talking about the other bill that you just mentioned, the two-for-one credit.
Mr. Nicholson: The Province of Ontario and the Province of Quebec supported this. I had all provincial attorneys general encourage me over several meetings to move forward to reform the process of giving two-for-one credit in this country. Every single province has raised that matter with me on more than one occasion. I am only too happy to respond to those provincial concerns. The concern that has been raised with me over several years is that by clogging up the courts, the provinces are picking up the tab for those people who continuously get adjournments. These are steps in the right direction. Nothing is perfect. I said publicly how appreciative I was of provincial attorneys general stepping forward to support us in getting rid of that double credit for time.
[Translation]
Senator Carignan: If I may, I would like to come back to the bill we are currently studying. What is the cost of auto theft to Canadians? How much extra do taxpayers pay for their insurance policies because of auto theft?
[English]
Mr. Nicholson: The Insurance Bureau of Canada indicates that it costs the insurance industry about $1.2 billion a year. Of course, the individual has to pay the deductible. When it was broken down, they indicated to me about $47 dollars on every car insurance policy in this country is just to cover the cost of stolen vehicles.
[Translation]
Senator Carignan: My second question goes to Mr. Bartlett and follows on from the question that Senator Baker asked. Clause 353 reads:
Every person commits an offence who, without lawful excuse. . .
Does the fact that ``without lawful excuse'' is already written into the way the offence is created address the concern that you expressed about people who might have a legitimate reason for altering a vehicle? Meaning that you are not specifically obliged to add to the wording that creates the offence, which seems to me to be quite clear. Have you considered the implications of those words, ``without lawful excuse''?
[English]
Mr. Bartlett: Yes, we have, senator, and lawful excuse might cover it, but it is a rather vague phrase. As I said, it is most commonly used in offence provisions where the lawful excuse will be a rare occasion.
There are other precedents in the Criminal Code for applying a ``without lawful excuse'' exception to a broadly phrased prohibition. However, it is commonly used only to cover the rare occasion when something that will almost always be part of the prohibition is something that should not be captured by it.
What subsection 3 covers is not rare. It truly is something that happens every day. With respect, I really do not believe that any of the police or Crown attorneys would suggest this offence should in any way capture removal or obliteration of a VIN during regular maintenance or repair work done for a legitimate purpose. This will be very common.
What creates the offence is the general prohibition and then clearly carving out the legitimate activity where this will happen on a regular basis. ``Without lawful excuse'' is there to capture rare cases we cannot capture clearly in subsection 3. Maybe we do not even think of it or it will be a rare event. However, it arises in a particular case and someone can advance something that a court, using the jurisprudence used over the years in terms of what lawful excuse would be in various situations, can apply and say, yes, in this case, we see a lawful excuse that is not part of the clear description of legitimate activity in subsection 3.
[Translation]
Senator Carignan: You talked about the possibility of including the theft of automobile parts. Senator Lang described how he had had his vehicle stolen. I had parts stolen: the tires, the wings and the bumpers. The vehicle was practically stripped.
The police officer told me that the parts would be used to repair other stolen vehicles and that it was a way of getting hold of spare parts. I do not see that as an offence here; I suppose that is because no vehicle is being stolen and no vehicle identification number is being altered.
Even if the vehicle identification number may be on the wings of the vehicle, the number is not being altered. But it serves as camouflage and it creates confusion in identifying the vehicle. Is that something that your legal affairs people have studied?
[English]
Mr. Bartlett: Senator, the possession and traffic offences would certainly cover those cases where the vehicle is simply stripped of parts. However, if you are talking about a vehicle that is first stolen and then stripped of parts, then you have a combination of the auto theft —
[Translation]
Senator Carignan: The vehicle was not stolen; it was left in the parking lot. In my case, the vehicle stayed in my parking spot and the parts were taken.
[English]
Senator Angus: It must have been a Rolls-Royce.
Mr. Bartlett: The ordinary theft offences, plus the trafficking offence, would apply in those cases.
[Translation]
Senator Carignan: So that would be under the general offence and the new offences would not apply?
[English]
Mr. Bartlett: The general offence would be theft over or theft under, depending on the value of the parts. These new trafficking provisions would also apply.
Senator Rivest: So long as Senator Baker is becoming impatient, I have a ``Liberal question'' relating to youth.
[Translation]
Kids who are neither street gang members nor involved with organized crime often steal a vehicle just for kicks or so they can go joyriding. Are they going to be subject to the same minimum penalty after three offences even if the offences were committed when they were teenagers or young adults?
[English]
Mr. Nicholson: They will be subject to the provisions of the Youth Criminal Justice Act. You will see some of the changes I am bringing in that respond to the non-commissioned report that you talked about, specifically with respect to a repeat offender whose actions result in a fatality. There are specific provisions for the detention of an out-of- control individuals or youth who pose a danger, not only to the public, but also to themselves. That is one of the things we cannot forget.
However, the Youth Criminal Justice Act will continue as modified by the law we have introduced into Parliament. Again, this is something separate in the Criminal Code.
The Chair: This strikes me as the natural point, Minister, to thank you. We wish you Godspeed back to the House of Commons.
Mr. Nicholson: I thought you meant Godspeed with respect to this bill.
The Chair: I would not want to prejudge the committee's deliberations.
We will ask the officials to stay on, if we may.
We are delighted that Mr. Bartlett and Ms. Clarke have been able to stay with us as we go to the second round of questions.
Senator Wallace: I want to come back to the issue that Senator Baker raised. Proposed section 353.1(1) deals with tampering or the removal of the VIN. The discussion earlier was about some concerns, according to Senator Baker, that were expressed by law enforcement or Crown prosecutors about not making that offence an absolute or strict offence. The mere fact that the VIN is removed and there is a need to prove any intent on the part of the person who removed it will create more difficulty in the prosecution. I suppose that would be true. However, is that not entirely consistent with the Criminal Code in that mens rea, criminal intent, is needed to be proven by the Crown in respect of nearly all offences in the Criminal Code, with the rarest of exceptions where there is either strict or absolute liability? The pattern is that the criminal intent, the mens rea, has to be proven by the Crown, and that is the pattern throughout the Criminal Code. Is this section not entirely consistent with that?
Mr. Bartlett: Yes, senator. Mens rea is always a requirement in any truly criminal offence. It is not possible to create a strict liability offence in the Criminal Code, but if you defined in the Criminal Code that it is always an offence to remove a VIN, then you cannot take your car in when it is damaged if, in repairing it, they will have to remove a VIN. It is as simple as that. It is a question of how you define it. In some instances, the removal of the VIN will be purely legitimate, but in other instances, it will be removed for the purpose of disguising the vehicle.
As I said, an earlier version proposed that it be an offence to remove the VIN for the purpose of disguising the identity of the vehicle. The Crown attorneys were concerned with that version because proving the intent of the accused is always a difficult task.
With respect to those Crown attorneys who have spoken to Senator Baker about their concerns, we have not heard from Crowns about how this rather obvious, I would suggest, exception would play out in court. There is always a concern that the defence will attempt to prevent a conviction from being registered. Well, that is their job. That is what the defence does. However, if you look at the exception, the exception says we are not trying to capture activity where VINs are altered, removed or defaced in the course of normal, regular vehicle maintenance, repair or modification. Those activities occur every day. We simply cannot capture this and then justify the offence. This says that we are not capturing this, and it makes it clear.
Senator Wallace: In those circumstances, there would be no criminal intent. If the VIN is removed for the legitimate purpose of doing maintenance, there obviously would not be any criminal intent. There would not be mens rea on the part of the person removing it.
Mr. Bartlett: There would not be a criminal purpose, senator. If you simply put a strict prohibition in the Criminal Code saying you may never remove a VIN, then if the person intentionally violated that prohibition, they would have the mens rea to remove the VIN contrary to the Criminal Code. That is why, when we define what we are trying to prohibit, we have to say that it will not always be an offence to remove a VIN. There are many circumstances where removal of the VIN will occur in entirely legitimate circumstances, and that is what proposed subsection 353.1(3) says.
Senator Wallace: Then it becomes a question of proof whether it was removed for a lawful purpose, based on facts presented before the court.
Mr. Bartlett: Yes.
Senator Baker: I think you would find that you would agree with Mr. Bartlett that it depends upon the Criminal Code whether something is defined as a specific intent offence or a general intent offence as to the degree of mens rea and whether or not it is present.
Ms. Clarke, something in the back of my mind says that joyriding is a completely different offence.
Paula Clarke, Counsel, Criminal Law Policy Section, Department of Justice Canada: It is completely different.
Senator Baker: Joyriding is addressed not by this section or the repetitive nature of a provision in this bill, but under a different section of the Criminal Code.
Ms. Clarke: It is a lesser offence, found in section 335 of the Criminal Code. It is just a summary conviction offence, and it gives law enforcement the option to go for a lesser penalty in situations where you have youth joyriding, dropping the car off and those situations.
Senator Baker: The minimum punishment here pertains only to charges under the theft provision.
Ms. Clarke: That is right, under the new theft provisions.
Senator Baker: Yes.
Let me make something clear. Madam Chair, you heard me and it is on the record. Mr. Bartlett and Senator Wallace, I did not say that I was speaking to any Crown attorneys. I did not say that I am making any of these claims. I was simply quoting police officers who appeared before the committee. I was quoting also Detective Sergeant Stephen Boyd of the Organized Crime Enforcement Bureau. You can check the transcript of the proceedings at page 22 of our December 10, 2009, Senate committee in which Mr. Boyd said he was speaking to Crown attorneys. It did not say that I was speaking to them.
Mr. Bartlett: My apologies, senator.
Senator Baker: I do not normally speak to Crown attorneys.
I raise my final question because it is of such prominence today with the terrorism threat in the United States and the event at Times Square. We have a provision, which both you and the minister referred to, of it being contrary to law to possess a vehicle that has an altered vehicle identification number. We brought in that provision back in the 1970s, as I recall, it is section 354.2 of the Criminal Code. It says:
In proceedings in respect of an offence under subsection (1), evidence that a person has in his possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that . . . .
The person knew that there was a criminal offence taking place.
Our testimony before the committee to date is, and I am quoting Mr. Boyd at page 23 of his testimony on December 10:
Under that subsection, it is only a presumption, right? There is no charge to be laid there.
I presume what he is talking about is that this provision has been determined to be unconstitutional going back to 1983, and I just want to read for your benefit one sentence from R. v. Rai, 2001, Court of Appeal of Ontario, Carswell, Ontario, 2163, paragraph 4:
However, in giving her instructions to the jury, the trial judge inadvertently read all of section 354.(2), and neglected to delete the unconstitutional portion of the section.
The declaration of unconstitutionality pertaining to those vehicle identification numbers and the assumption that someone knew a criminal offence had taken place, was made in 1983 and yet the provision is still in the Criminal Code. Here we are today dealing with vehicle identification numbers and I wonder why we did not go back in this bill before us and make section 354.(2) applicable to persons who have in their possession vehicles with obliterated or removed vehicle identification numbers. Is there any reason we do not go back and do that?
Mr. Bartlett: You are right, senator, there is not an offence for simply being in possession of a vehicle with an obliterated VIN. The offence is possession of property obtained by crime and the issue is simply if the VIN has been removed the code provides for a presumption that they knew it was stolen.
Senator Baker: That is unconstitutional.
Mr. Bartlett: That is the issue and why did we not remove it? We simply were not addressing section 354 or any of the number of other provisions in which words have been read out of various sections.
Senator Baker: It is just like the minister said, the cow, as far as theft is concerned, is in the Criminal Code. I do not know of many other jurisdictions that does not have such a provision. We attempted to do it in the 1970s. I was here when we brought in the provision, possession of a vehicle, VIN altered, the assumption was you were guilty, you knew that that vehicle was obtained through a criminal offence — struck down.
Surely we should go back and revisit this. I do not know whether we look all that great when we have a provision on the books that really has no effect as far as the VIN number is concerned. Anyway, it is something for the minister or the department to think about.
Mr. Bartlett: We will certainly take that under consideration, senator. Thank you.
Senator Runciman: It may not be something you can respond to, but I am told it is a significant issue and certainly, I would think it is critical to fight the organized export of stolen autos, and that is the question of the Canadian Border Services Agency sharing information with police and with the Insurance Bureau of Canada. They cite section 107 of the Customs Act as the rationale for not cooperating in the sharing of information.
Have you any views on that situation?
Mr. Bartlett: You are right, senator. It would be inappropriate for me to comment on either the practices or the legal structure in which the CBSA operates, but I do believe you have a witness from the CBSA appearing tomorrow.
Senator Runciman: I was hoping you would say something.
Mr. Bartlett: I would ask you to put that question to them because it is their area of responsibility.
Senator Runciman: Is it a concern you have heard as well?
Mr. Bartlett: Yes.
Senator Joyal: Ms. Clarke, my question is in relation to clause 12 of Bill S-9, the coordinating amendment. If I understand the operation of that amendment contained in Bill C-16, it would mean that someone who has been found guilty on indictment would not be eligible for a conditional sentence for motor theft. The types of offences that fall under the ambit of Bill C-16: luring a child, sexual assault, kidnapping, abduction are very violent crimes against a person or against a child. I have difficulty assimilating that the indictment for an offence of a motor vehicle theft would be at par with those types of offences. They are offences directed against a person with very violent impact on the integrity of the body of and the mind of the person. I do not see how that works, unless I am misreading Bill C-16 in relation to proposed section 333.1 concerning motor vehicle theft, which will amend the Criminal code paragraph 742.1(f).
If I understand, if the proceedings are by way of indictment, there is no possibility of a conditional sentence. That is the way Bill C-16 would operate, on the same basis as luring a child, sexual assault, kidnapping and abduction, which are very serious offences. I do not see how you can put an offence of motor vehicle theft on the same level as an offence against the person. Why did you conclude that was needed?
Ms. Clarke: I do not have Bill C-16 before me but, if you look at the amendments included within the proposed changes to section 472.1, there are the more serious offences that have a maximum penalty of 14 years. They include luring, child sexual abuse, et cetera. In addition, a section includes 11 offences prosecuted by indictment for which the maximum term of imprisonment is 10 years. This new offence, should it be passed, section 331.1, would fall under the ambit of this category. It is a coordinating amendment just to ensure that was included in the enumerated list.
Senator Joyal: I know it is coordinating amendments, but you have to coordinate the comparables. It seems to me that there is something that goes beyond borders in terms of the consequences that are attached to indictment procedures. We do not know the circumstances of a car theft.
Senator Lang: The third time?
Senator Joyal: No, it is by way of indictment. When proceeding by way of indictment to imprisonment for a term of not more than 10 years and to minimum punishment for a term of six months in the case of a third subsequent offence, yes; but still, as I say, it is to compare offences that are of the same nature, same importance, same seriousness, if I could put it that way.
Is it reasonable — that is the question I am asking — to put it at that level? That is essentially what I am saying.
Mr. Bartlett: Senator, the short answer is that it is the policy of Bill C-16 to remove the possibility of conditional sentence for certain serious property crimes, and the offence of motor vehicle theft is both a very serious property crime and a crime that creates risk to public safety through car chases and reckless driving. This is not uncommon, and it is thought that a conditional sentence pursuant to the policy of Bill C-16 ought not to be available. However, it is not within our brief here today to comment on the policy of Bill C-16. This bill would add this offence to comparable offences with which Bill C-16 does deal.
Senator Joyal: We might want to revisit that if and when Bill C-16 comes before the Senate. It seems to me that the two bills are out of balance.
Mr. Bartlett: Senator, in addition to dealing with a potentially serious general offence, when it is proceeded with by indictment it gives the Crown the option of using a much more serious procedure that is generally applied in the more serious cases of the commission of the offence.
Senator Joyal: I know that. Thank you.
The Chair: I would like to return to Senator Joyal's questions concerning the impact this bill will have on government budgets. As I read this bill, its impact in terms of increased numbers of people being incarcerated would fall mainly on provincial governments, in that a sentence of six months requires provincial incarceration. I would assume the same is true for the house arrest provisions, because those do not apply to sentences of 10 years or more.
Am I correct in the basic assumption that the passage of this bill would not have as great an impact on the federal system as it would on provincial systems?
Mr. Bartlett: I suspect you are right, Madam Chair. If we are looking at a single case of motor vehicle theft under this section with a minimum term of six months being applied, yes, that will be a provincial sentence. However, these cases commonly involve a collection of offences and the penalty applied under this section would be melded into a global sentence that might well make it a federal sentence. It is very difficult to tell exactly what the impact will be, because in many cases the overall sentence could bring it within a federal term.
The Chair: You do understand that there is a certain duty on parliamentarians to understand, as much as possible, the implications of what they are voting on. It has been extremely difficult to get information in this area and anything you can provide us will help.
Mr. Bartlett: As my colleague noted earlier, it is difficult to get clear statistical evidence on sentencing for auto theft, because it is not a distinct offence. The data is not available isolated to motor vehicle theft. We have some anecdotal evidence, but not clear statistical evidence. One of the motivating factors for a separate motor vehicle offence is to isolate the activity which, in the future, will provide —
The Chair: Information that we can use.
Perhaps we can look forward to getting reports on these matters in due course.
Mr. Bartlett: If you request information that is available, Madam Chair, I am sure we can provide it.
The Chair: I was thinking more of reports on the effect of implementation of this bill, should it pass. Mind you, sometimes prorogations, dissolutions and all kinds of things occur before bills get passed, even apart from whatever the Senate may choose to do. I guess I should not be making predictions.
Senator Joyal: Could you check whether Juristat has any statistical information that would be helpful in understanding the nature of what we are dealing with?
The Chair: Senator Joyal, we have invited Statistics Canada to appear, and I believe they will be joining us next week. We can ask them for whatever is currently available, but I was trying to be forwarding looking on this.
If there are no further questions for these witnesses, Mr. Bartlett and Ms. Clarke, we thank you very much indeed.
(The committee adjourned.)