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James Cowan

The Hon. James  Cowan, Q.C., B.A., LL.B., LL.M., LL.D. Senator James Cowan has greatly influenced the educational and legal communities of Nova Scotia. He was appointed to the Senate on March 24, 2005 by the Rt. Hon. Paul Martin.

Statements & Hansard

Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct) with amendments

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Statement made on 09 June 2009 by Senator Joan Fraser

Hon. Joan Fraser:

Honourable senators, rule 99 states that a senator presenting a committee report on a bill with amendments shall explain each amendment. I will attempt to do that for you now. Before I get into the details, I would like to provide some context.

Bill S-4, as the letter suggests, was first introduced in the Senate and addresses identity theft and related misconduct. This is a very complex issue. To be honest, our study was a voyage of discovery for us all. I would like to congratulate the committee members who worked so hard to gain a better understanding of the subject. I appreciate their non-partisan approach to the issue.

This is not the first time I, or other senators, have forgotten to do that.

Identity theft is an extremely complex matter and one on which we all had much to learn. This bill principally deals with the preparatory stages for identity theft because identity theft is often the kind of crime where once the damage is done it is very hard to undo, and sometimes the victims do not realize the damage has been done. This bill addresses preparatory stages for identity theft, obtaining documents, to possessing documents, and stealing people's identity in order to commit fraud.

We learned that this is an area of crime growing by leaps and bounds and is of a magnitude that surprised me. Estimates in Canada range from several hundred million dollars a year up to maybe $2 billion a year. I saw one estimate that nearly one quarter of Canadians have been victims of identity theft and/or fraud, so this is not a small matter.

We also learned that it is changing rapidly. The technology by which we establish our identities changes regularly. Therefore, the means by which criminals can steal our identities changes equally rapidly.

Your committee was faced with a couple of strong pressures as we continued our work. The stakeholders were, I think, unanimous in saying, "Please give us this bill quickly." Quite a number of them also said, "We are not quite sure exactly how it will work out in practice. We want it now but we are honest enough to tell you we are not exactly sure how it will work out in practice." A number of them also warned us against passing a new law that would apply only to the horses that have already left the barn and that would not apply to technologies that will be invented or refined next month or next year.

It was with those general principles in mind that your committee has proposed the amendments now before us.

The first set of amendments in clause 1 has to do with the list of official documents, that is, documents issued by a Canadian or foreign government, where the bill makes it an offence to procure to be made, possess, transfer, sell or offer for sale these documents.

The clause as originally written contains a long and specific list of documents: social insurance number, driver's licence, health insurance card, passport, certificate of Indian status and so on, but it is a closed and specific list.

Your committee did two things: First, it expanded that list and included death certificates and employee identity cards which bear the employee's photograph and signature. I repeat, we referred to documents issued by governments. Then your committee also opened up the list to allow for future technological advances by saying that this list refers to all the documents I previous mentioned plus some I did not list or any similar document issued by a Canadian or foreign government.

I would draw your attention next to our amendment referred to in paragraph 3, which was to clause 4, where we expanded the references to credit card data to include personal authentication information. This was a recommendation made by some of the stakeholders, and it seemed wise to us. This, again, is designed to allow for advances in technology that are not now listed in the bill.

Some of you may wonder why we refer only to credit cards. The definition of a credit card in the Criminal Code is extremely broad. For the purposes of the Criminal Code, a credit card includes a debit card, which we might find odd, but that is the way it is in the Criminal Code. It was thought that definition was sufficiently broad and we did not have to attack at present the specific definition, but we wanted to include, in references to data, personal authentication information.

We added in a review clause, which is under paragraph 4 of our report. This is the standard review clause that says that within five years after Royal Assent a comprehensive review shall be undertaken by a committee of the Senate, the Commons or both. That review clause addresses what I referred to earlier, which is the sense that we got from a number of stakeholders that they were not quite sure how this bill would work out in practice even though they really want it now. The idea is that we should come back and look at it.

Finally, honourable senators, I would draw to your attention the amendment referred to in paragraph 2, which is to clause 2, and this is of a different order. This bill includes, in several places, what appears to be a new style adopted by the drafters of legislation, which is, I suppose, designed to make our law in English gender neutral. You find yourself facing clauses designed to use plural pronouns in reference to a singular introductory noun: "everyone" on first reference and "they" on second reference.

If you look at the text of the bill, you will see this has frequently led to clumsy, awkward, ungrammatical and even embarrassing language. In most cases the drafters' intentions remains clear.

However, in clause 2, the original text that was proposed would have had the laws of Canada say, "Everyone commits an offence who . . . falsely represents themselves to be a peace officer or a public officer;" which is awkward. It went on to say, "Everyone commits an offence who . . . not being a peace officer or public officer, 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 or a public officer, as the case may be," which is not only awkward but is, in plain grammatical sense, not what the drafters were trying to convey. It means, in a plain grammatical analysis, that this is likely to cause the persons — the members of the public — to believe that they are a peace officer, which was not what the drafters were trying to achieve.

In that case, we amended this bill to go back to standard Criminal Code language. I refer, again, to the English version.

The French version is much more civilized and does not cause any of these problems.

In English, it will just say, "Everyone who falsely . . . represents himself to be a peace officer . . ." and causes "persons to believe that he is a peace officer. . . ."

I think that covers all the amendments. I would again thank all members of the committee for the careful, thorough and collegial way in which this work was done.

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