Bill C-52: An Act to amend the Criminal Code (sentencing for fraud)

C-52 Second Session, Fortieth Parliament, 57-58 Elizabeth II, 2009 HOUSE OF COMMONS OF CANADA BILL C-52 An Act to amend the Criminal Code (sentencing for fraud) first reading, October 21, 2009 MINISTER OF JUSTICE 90534 SUMMARY This enactment amends the Criminal Code to (a) provide a mandatory minimum sentence of imprisonment for a term of two years for fraud with a value that exceeds one million dollars; (b) provide additional aggravating factors for sentencing; (c) create a discretionary prohibition order for offenders convicted of fraud to prevent them from having authority over the money or real property of others; (d) require consideration of restitution for victims of fraud; and (e) clarify that the sentencing court may consider community impact statements from a community that has been harmed by the fraud. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca .vis1 {position: absolute;display:block;} .vis2 {position: static;} 2nd Session, 40th Parliament, 57-58 Elizabeth II, 2009 house of commons of canada BILL C-52 An Act to amend the Criminal Code (sentencing for fraud) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title 1. This Act may be cited as the Retribution on Behalf of Victims of White Collar Crime Act. R.S., c. C-46 CRIMINAL CODE 2. Section 380 of the Criminal Code is amended by adding the following after subsection (1): Explanatory NotesCriminal Code Clause 2: New. Notes explicativesCode criminel Article 2 : Nouveau. Minimum punishment (1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars. 2004, c. 3, s. 3 3. (1) The portion of subsection 380.1(1) of the English version of the Act before paragraph (a) is replaced by the following: Clause 3: (1) and (2) Relevant portion of subsection 380.1(1): 380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in sections 380, 382, 382.1 and 400, it shall consider the following as aggravating circumstances: (a) the value of the fraud committed exceeded one million dollars; Article 3 : (1) et (2) Texte du passage visé du paragraphe 380.1(1) : 380.1 (1) Sans que soit limitée la portée générale de l’article 718.2, lorsque le tribunal détermine la peine à infliger à l’égard d’une infraction prévue aux articles 380, 382, 382.1 ou 400, les faits ci-après constituent des circonstances aggravantes : a) la fraude commise a une valeur supérieure à un million de dollars; Sentencing — aggravating circumstances 380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: 2004, c. 3, s. 3 (2) Paragraph 380.1(1)(a) of the Act is replaced by the following: (a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (3) Subsection 380.1(1) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after that paragraph: (3) and (4) New. (3) et (4) Nouveau. (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (4) Subsection 380.1(1) of the Act is amended by adding the following after paragraph (d): (e) the offender did not comply with a licensing requirement, or professional stand- ard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and (f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. 2004, c. 3, s. 3 (5) Subsection 380.1(2) of the Act is replaced by the following: (5) Existing text of subsection 380.1(2): (2) The court shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. (5) Texte du paragraphe 380.1(2) : (2) Le tribunal ne prend pas en considération à titre de circonstances atténuantes l’emploi qu’occupe le délinquant, ses compétences professionnelles ni son statut ou sa réputation dans la collectivité, si ces facteurs ont contribué à la perpétration de l’infraction, ont été utilisés pour la commettre ou y étaient liés. Aggravating circumstance — value of the fraud (1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars. Non-mitigating factors (2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. Record of proceedings (3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence. 4. The Act is amended by adding the following after section 380.1: Clause 4: New. Article 4 : Nouveau. Prohibition order 380.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 380(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person. Duration (2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment. Court may vary order (3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances. Offence (4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. Court to consider restitution order 380.3 (1) When an offender is convicted, or is discharged under section 730, of an offence referred to in subsection 380(1), the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739. Inquiry by court (2) As soon as practicable after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses, the amount of which must be readily ascertainable. Adjournment (3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses, if the court is satisfied that the adjournment would not interfere with the proper administration of justice. Form for victims (4) Victims may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the Lieutenant Governor in Council of the province where the court has jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses, the amount of which must be readily ascertainable, in the same manner. Reasons (5) If the court decides not to make a restitution order, it shall give reasons for its decision and shall cause those reasons to be stated in the record. Community impact statement 380.4 (1) For greater certainty, for the purpose of determining the sentence to be imposed on an offender, or whether the offender should be discharged under section 730, in respect of an offence referred to in subsection 380(1), the court may consider a statement made by a person on a community’s behalf describing the harm done to, or losses suffered by, the community arising from the commission of the offence. Procedure (2) The statement must (a) be prepared in writing and filed with the court; (b) identify the community on whose behalf the statement is made; and (c) explain how the statement reflects the community’s views. Copy of statement (3) The clerk of the court shall provide a copy of the statement, as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor. 5. Part XXVIII of the Act is amended by adding the following after Form 34: Clause 5: New. Article 5 : Nouveau. FORM 34.1 (Section 380.3) STATEMENT ON RESTITUTION FOR FRAUD Canada, Province of ............, (territorial division). To the court that is sentencing (name the offender) who was convicted, or was discharged under section 730 of the Criminal Code, of an offence referred to in subsection 380(1) of that Act. I, (name of declarant), declare that (check the appropriate box): [ ]       (i) I am not seeking restitution for the losses I suffered as a result of the commission of the offence. [ ]       (ii) I am seeking restitution in the amount of $................. for the following losses I suffered as a result of the commission of the offence. I declare that I have suffered the following losses as a result of the commission of the offence: (Complete the following table if seeking restitution.) Description Amount of loss (describe each thing of which the declarant was defrauded) (state, in respect of each thing, the amount of the loss) 1. ........................... ........................ 2. ........................... ........................ 3. ........................... ........................ 4. ........................... ........................ I understand that the amount of my losses must be readily ascertainable by the court. For that purpose, I am responsible for providing the court with all necessary documents, including bills, receipts and estimates, in support of my claim for restitution. Dated this ........ day of ............ 20........, at ............. . ....................................... Signature of declarant COMING INTO FORCE Order in council 6. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council. Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada