Law Times

Law Times • may 31, 2010 An online resource 1.800.263.3269 Focus On CRIMINAL LAW crack down on white-collar crime, saying Ottawa is "standing up for victims" by amending fraud provisions in the Crimi- nal Code. Yet critics argue the eff ort is little more than political grandstanding that fails to target the growing problem at its root. If bill C-21 passes, changes will come into play for sentencing and restitution in fraud cases, and judges would be forced to consider community impact statements. Th e bill proposes mandatory two-year jail terms for off enders found guilty of fraud over $1 million. New aggravating factors, such as the fi nancial and psychological impact of the fraud, the off ender's failure to follow professional standards, and the seriousness and duration of the crime, would also be introduced. At the same time, judges would be forced to consider a restitution order in all cases of fraud involving an identifi ed victim who has suff ered fi nancial loss. Crowns would have to show that eff orts have been made to let victims advise the court of their losses. Meanwhile, communities, neigh- bourhoods or associations would have the opportunity to present an impact statement that describes losses suff ered by the group. Th e proposed legislation follows a re- cent spate of fraud cases, including the Earl Jones, Mount Real, and Norshield inci- dents. Th ose cases haven't helped Canada's image as a haven for white-collar criminals, a reputation that grew when the infl uential magazine Th e Economist featured an article Victims celebrate white-collar crackdown F BY ROBERT TODD Law Times ederal Justice Minister Rob Nich- olson unveiled in early May the federal government's latest eff ort to last year on the country's struggles in this area. Th e article referenced, among other things, the glacial pace of the fraud prosecution of former theatre impresarios Garth Drabinsky and Myron Gottlieb and Canada's failure to pros- ecute Conrad Black, who was jailed in the United States. Th e article scorn by drew comparing Canada to corrupt Latin American countries, but the federal Conservatives seem to have picked up on the sentiment that Canadian authorities must do more to keep citizens from becoming victimized fi nancially. Th e proposed legisla- tion has certainly caught the attention of people like Joey Davis of Montreal, who repre- sents the Be Strong Movement, a national coalition of victims of investor fraud. He is particularly supportive of the bill's provi- sions for restitution, arguing the steep cost of seeking redress through the civil courts is a non-starter for many victims. However, while the government has opted to target the Criminal Code to solve the problem, experts and consumer advo- cates believe this attempt is misguided. Toronto lawyer Phil Downes, who spe- cializes in white-collar crime cases, con- siders much of the proposed legislation redundant, particularly the provisions for minimum sentences. "Th e truth of it is that it's probably today Many prosecutors don't like doing complex fraud investigations, says Phil Downes. police But lawyers, experts say more resources necessary to deal with fraud marked improvement in this area will come only through an infu- sion of cash for better detection and preven- tion and more effi cient prosecution of cases. "I think it's very much about expertise," says Downes. "Tradi- tionally, there's a sense amongst and prosecutors that fraud is not everybody's cup of tea. Many pros- ecutors just do not like doing large, complex, paper-based fraud pros- ecutions. And, frankly, many investigators don't like doing the investiga- tion. It takes real skill, real training, real dedi- cation, and incredible patience." However, Downes believes eff orts like the the relatively rare case that you would have a $1-million fraud that someone wouldn't go to jail for two years," he says. "Unless there are some fairly exceptional circum- stances, anyone convicted of a fraud of that size can expect to go to the penitentiary." Downes also objects in general to the eff ort to alter the Criminal Code, which continues to expand to the detriment of clarity within the justice system. He's be- wildered as well that the government, by imposing minimum sentencing, contin- ues to signal a lack of trust towards the very judges it appoints. So while the government focuses its resources toward "sending a message" on white-collar crime, Downes believes RCMP's integrated market enforce- ment teams, which involve a wide range of specialists who collaborate to prosecute fi nancial fraud, are proving less eff ective than hoped. "I'm not sure there's the necessary high-level skill and long-term com- mitment to those investigations that would really make a diff erence," he says. "Sometimes, you see some of the transi- tion of investigators in and out of these teams, which can have a considerable impact on these investigations." More focus should also be placed on improving disclosure practices in fraud cases, says Downes. He believes wider use See Bill, page 13 Interlock program set to begin in August BY ROBERT TODD Law Times program experts say will re- duce drinking-and-driving re- cidivism, but lawyers argue it unfairly punishes accused for taking their case to trial. Th e provincial Liberals made way for the creation of the Reduced Suspension with Ignition Interlock Conduct Review program with legisla- tion passed in 2007. Th e Safer Roads for a Safer Ontario Act also boosted penalties for street racing and aggressive and impaired driving. T While many of those chang- es were implemented long ago, the government is just now he Ontario govern- ment seems poised to fi nally implement a to Law Times that an Aug. 3 start date has been circulated to Crown lawyers. Information posted on the 'It acts as a behaviour modifi- cation program,' says Nathan Baker. putting the fi nishing touches on the ignition interlock pro- gram, with sources indicating province's regulatory registry indicates drivers convicted of impaired driving could get back on the road much sooner through the new program. Currently, drivers face a minimum of a one-year li- cence suspension for their fi rst off ence. But certain off end- ers deemed eligible for the new program could be back on the road after serving a minimum driving suspension of three months followed by nine months of driving with an ignition interlock device. It attaches to a vehicle's ignition system and keeps it from start- ing if more than 20 milligrams of alcohol in 100 millilitres www.lawtimesnews.com of blood are detected from a breath sample. However, driv- ers must enter a guilty plea, be sentenced, and receive a driv- ing prohibition order within 90 days of their off ence date in order to be eligible for the program. Th e government says stud- ies indicate ignition interlock devices reduce recidivism and that up to 75 per cent of sus- pended drivers continue to drive despite being barred from doing so. "Th e evidence is clear — we must do more to address drinking and driving," said Emna Dhahak of the Ministry of Transportation in an e-mail response. "While Ontario has come a long way, drinking and driving is still a factor in about one-quarter of all traffi c fatalities in Ontario. Th is new program will make our roads safer by helping to prevent drinking and driving and driv- ing while suspended." Dhahak added: "By allow- ing drivers to get back behind the wheel with an ignition in- terlock, we are giving them a chance to continue to be pro- ductive members of society while strictly monitoring and controlling their behaviour." Lawyer Nathan Baker of Aitken Robertson Profes- sional Corp. in Peterborough, Ont., says the program is long overdue. "It acts as a behaviour modifi cation program," says Baker, whose fi rm specializes in drinking-and-driving cases. "If people are just told they can't See Program, page 13 PAGE 9

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