CBA voices opposition to proposed legislation targeting white-collar crime

The Canadian Bar Association says proposed new amendments to the Criminal Code, which call for mandatory minimum sentencing for fraud, are unnecessary and already covered in existing legislation.
Bill C-52 received its second reading in the House of Commons on Oct. 29, 2009 and is now under review by a committee.
The intent of the bill is to “help crack down on white-collar crime and increase justice for victims,” the bill says in its ‘Background’ section. Principal amendments include:
•    a two-year mandatory minimum sentence for fraud over Cdn$1 million;
•    additional aggravating factors for the court’s consideration in sentencing;
•    a new type of prohibition order that would bar offenders, including those convicted of frauds under Cdn$5,000, from working or volunteering in any capacity that involves having “authority over the real property, money or valuable security of another person.”
•    new obligations on the judge with respect to restitution orders; and
•    a new type of impact statement to consider in sentencing.
“While fraud can certainly be a serious crime with devastating consequences for its victims, based on our experience as both Crown and defence lawyers from all regions of Canada, we believe that Bill C-52 is directed at a problem that does not exist,” said Suzanne Costom, a member of CBA’s National Criminal Justice Section.
“We believe that Bill C-52 would not add to the tools already found in the Criminal Code.”
In a five-page letter to the Commons Committee on Justice and Human Rights, the CBA said Bill C-52, in calling for mandatory minimum penalties for fraud, would limit judicial discretion to address the individual circumstances of each case.
“Judges routinely factor the amount of a fraud into their determination of an appropriate sentence,” said the CBA in its letter. “In circumstances where the fraud is clearly in excess of Cdn$1 million, the punishment would undoubtedly be very severe.”
CBA also suggests the bill would increase pressures on an “already taxed” criminal justice system.
“The legislation uses vague and overly broad language [that] is likely to result in more litigation and longer sentencing hearings, especially given the mandatory jail time involved.”
The CBA also questions the sweeping nature of the proposed prohibition order.
“This could conceivably prohibit someone from working as a cashier at a convenience store or a coat check clerk at a charity event, if they would be handling the money of their employer or the employer’s clients, ” the CBA says.