Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 63 - Evidence
OTTAWA, Thursday, April 24, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, to amend the Criminal Code (production of records in sexual offence proceedings); and Bill C-95, to amend the Criminal Code (criminal organization) and to amend other Acts in consequence, met this day at 10:32 a.m. to give consideration to the bills.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: We have two jobs to do this morning. First, we will engage in clause-by-clause consideration of Bill C-46, an Act to amend the Criminal Code (production of records in sexual offence proceedings). Is there a motion on Bill C-46?
Senator Lewis: Yes. I move to report the bill without amendment.
The Chair: Before we so move the motion, do we have any comments?
Senator Jessiman: I believe we should be given more time to consider some of the evidence that went before the House of Commons committee. Both myself and Senator Doyle have read some of this. Senator Doyle has read more than I have. I have read enough to convince me that I do not think that this bill should be passed. I think we are rushing it. In fairness to both sides, we should know both sides of the problem here.
I want to put on the record things that are said on the other side. We are told that this clause is being brought in to protect the complainants, that their records will not be used by the defence, and that it would encourage complainants to come forward, but we are also told that complainants do not come forward because of the concern that some of these records may come into the hands of third parties.
That is not what the defence lawyers are telling us. The persons that I refer to are Mr. Marvin Bloos and Mr. Koziebrocki. Mr. Koziebrocki said:
I would venture to say that between one-third and one-half of the appeals that I do now are sexual assault cases. If you want to take that as an indication, compared with what it used to be like, ten or fifteen years ago, 10% of the cases were of that nature. That has been a dramatic increase.
Mr. Durno said:
So I think some of the concern that once you go to the police, once the information is sworn, your life is an open book, in my respectful submission, is not the law in Canada at the present time on the basis of O'Connor.
That was a 1995 Supreme Court case. He goes on to say:
In my practice in criminal courts and in the practice of our members, it just doesn't happen that way, the way it's being portrayed.
I wish to refer to Mr. Bloos again. He said:
What the court said was that in order to make sure guilty people aren't punished and sent to jail on the one hand while privacy rights are trampled on the other, it was going to establish a threshold for the accused. He has to establish likely relevance. He has to show something beyond the fact that the person has gone to a therapist. He has to be able to identify some criteria.
We all agree with that. He says:
The problem with this legislation and the eight factors --
I think there are 13. He goes on to say:
-- that are covered therein is that four or five of them take away all of the relevant criteria such as credibility or inconsistency or other sorts of issues. We've come down heavily in favour of a privacy right, a generalized privacy right against, and in my opinion, that trumps the accused's right to a fair trial under section 7 in the face of expert opinion that as many as 40 per cent of allegations may be untrue.
We're not talking about a rare case where there might be a miscarriage of justice. We're talking of very high numbers of potentially untrue allegations.
In fairness to the Senate itself to do the job it is supposed to do to actually give a proper second, sober thought about this bill, we must have more time and more witnesses. This is not one of these critical things on which the election will be won or lost. Even if it was, I do not think it should go back yet. I think we should hear from other witnesses.
Senator Gigantès: I do not think that we should allege that this very serious legislation, which has been in the works for two years, is before us for electoral reasons. The rights of privacy that are being protected are being protected to avoid the trial of the complainant.
I have a relative who has got, to my knowledge and in my presence, several women who were actually raped by trying them and saying, "You are prostitutes; you are promiscuous," or whatever. This is supposed to give added protection to these women.
We discussed yesterday instances in which, despite all the criteria set down, the defence attorney could claim that a particular thing such as a diary might contain evidence that would exculpate the accused. I thought there was consensus around the table yesterday that the judge would have the authority to say, "I want to look at it." I see Senator Beaudoin nodding affirmatively. The judge's right to protect the accused is not taken away from him by this bill.
Senator Doyle: I quite agree with Senator Gigantès' clarification that this probably has not been pushed through for electoral reasons. I do not think there are votes that can be easily gathered on either side. He says it is being put through for protection of women. I agree, but I would think that the larger job is to put things through for the protection of all who pass through our courts, be they male or female.
One of the faults we find now among justice as it used to be was that it was too oriented towards the interests and concerns of men. Let us not err on the other side. Let us make sure we are right on both sides.
Yesterday was an interesting day. Interesting questions were asked and interesting arguments occurred between members of this committee. That was fine. The justice department came and defended what the justice department had offered us.
I have not heard from the other side of the argument. I think that there is evidence and a good case to be made from the other side that we can read the testimony that was heard in the province and see whether we are impressed by it. We may not be in agreement that what was heard in the House of Commons was of interest to us, but we make up our own minds.
I agree with Senator Jessiman that we have not had the opportunity to make up our minds and that, in the interests of justice, we should take the time to call some witnesses.
The Chair: Are there any other questions? If not, there is a motion on the floor that we move the bill to the Senate without amendments. All those in favour?
Some Hon. Senators: Yea.
The Chair: Opposed?
Some Hon. Senators: Nay.
The Chair: Carried.
Honourable Senators, we will now move to consideration of Bill C-95, an Act to amend the Criminal Code (criminal organizations) and to amend other acts in consequence.
A number of additional witnesses at first asked to appear and then withdrew. For any senators who wonder why some names are not there, I wish to assure that it is not that the chair asked them to withdraw. They chose not to appear this morning.
We will begin with officials from the Department of Justice. It is my work plan this morning, if it has the concurrence of the group, that we will hear from representatives from the Department of Justice, the Civil Liberties Association and Professor Patrick Healy. We will have lunch brought in. We will proceed with our discussion and, hopefully, we will be able to deal with clause-by-clause consideration of the bill before we begin the afternoon session. If we do not, then I will have to call a session of the committee later this afternoon or early tomorrow morning. That is the work plan at this point.
There are two witnesses from the Department of Justice who are becoming very frequent guests of this particular committee, namely, Mr. Yvan Roy and Mr. Fred Bobiasz.
Welcome, once again, to both of you. Mr. Roy, please begin.
[Translation]
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Policy Sector: Madam Chair, it is a pleasure, as always, to be here this morning to discuss Bill C-95 which was recently tabled by the Minister of Justice. The best way to introduce the bill to you is to speak about the two measures it proposes. I see that you have a busy schedule ahead of you, and therefore I will be brief. After the presentation, we will be happy to answer any questions you may have. A brief presentation will help you to gain a clear understanding of the gist of the proposed legislation. Therefore, I will start by telling you about the two principal measures proposed in the bill.
First, the bill proposes the creation of an offence. If you look at clause 11 on page 7 of the bill, you will note that participation in a criminal organization constitutes an offence.
Second, clause 19 on page 19 authorizes a judge to proceed with a hearing at which time he may impose a peace bond on members of a criminal organization.
[English]
Let me take you first to page 7, clause 11, where the Minister of Justice is proposing that there be a crime created for the participation in a criminal organization.
You may have followed the debate that started a while back as to whether it would be possible in our law to create an offence of mere membership in an organization. The Minister of Justice for Quebec has proposed that such an offence be created. The Minister of Justice for Canada has come to the conclusion that it would not be appropriate to try to create something of that sort because of policy, as well as constitutional, problems with doing such a thing.
Therefore, the offence we are talking about here at proposed section 467.1 is not an offence of mere membership in an organization. Rather, this offence talks about taking part in the criminal activities of an organization. That is defined early on in the bill. That participation in the activities of the group involves the commission of an offence which, in and of itself, is serious.
Basically, this clause is saying, first, if you know that you are dealing with a criminal organization; and, second, if you are committing a crime that would be punishable by at least five years in prison and you are doing that for the benefit, in association with or at the direction of that gang or that criminal organization; the crime that you are committing which is punishable ordinarily by five years in prison is now punishable by 14 years in prison. Participating in the activities of that gang or that criminal organization, through the commission of an offence punishable by five years in prison, makes you guilty of a crime punishable by up to 14 years in prison. The maximum is 14 years.
The penalty that will be associated with this must be served consecutively to whatever penalty has been imposed. Instead of having, say, a sentence of three years imposed for participation in that crime, to be served concurrently with other terms of imprisonment that the person is serving, the law would say he must serve those three years after he has finished with the first sentence that he is serving.
You will have recognized that this offence builds on definitions. For the first time in Canadian law, Parliament would be defining what is meant by "a criminal organization." This is to be found at clause 1 of this bill, which is at page 2.
This organization we are talking about must be composed of at least five persons. The group that we are talking about may have a formal organization or informal organization, so there is flexibility in the definition. You do not need, for instance, to have a group that has a chart. You do not need to have letters patent for the group to exist. It is much more flexible than that. On the other hand, for that group to be in existence and be considered a criminal organization, you must stipulate that one of its primary activities is the commission of indictable offences, which are serious.
This bill is not trying to catch people who are involved in offences that are not serious. The threshold created by this bill is offences punishable by five years in prison. In our criminal law, you have summary conviction offences which, by and large, are punishable by six months. You have some that go to one year or 18 months, but, by and large, it is six months. You then have criminal offences that are punishable by two years. There are a number of them in the Criminal Code. All of these offences we are talking about are not covered by this bill. It starts with offences that are punishable by five years and up. If you participate in the criminal activities of these groups, you are guilty of a crime that is punishable by 14 years. The sentence to be served is consecutive.
It is also important that we talk right at the outset about the peace bond provision that is created. I told you it is clause 19 at page 19. What is this new power given to the court? It is a power whereby the state will have the power to get someone to appear before a provincial court judge on the basis that there are reasonable grounds to fear that the person to be brought before the court is a person who will commit a criminal organization offence. By "the state," I mean the Attorney General of the province because that is who is prosecuting Criminal Code offences.
What is a criminal organization offence? Return to the definition that we have created at page 3 of the bill and you will see that a criminal organization offence is the crime that I have been talking about, namely, the crime of clause 467.1, "Participation in criminal organization." We are talking about federal offences here and nothing else. It is also any federal offence punishable by five years or more committed for the benefit of, at the direction of, or in association with, a criminal organization.
For these crimes where there are reasonable grounds to fear that an individual will commit some of these crimes, it is possible to bring the person before a provincial court judge and for the provincial court judge to impose on that person, first, an order for the person not to breach the peace -- that is, not to commit offences. Second, in order to ensure that there is no breach of the peace, the judge can impose conditions as to the people this individual before the court can associate with, or as to places, for instance, where that person can go.
We know from what we have heard from the police that organized crime works because people talk to each other, plan with each other, and commit crimes together. The measure here is created for the purpose of breaking that cycle by ensuring that these people who must talk to each other in order to commit those crimes will not do that. If they do it irrespective of the order that is given to them by the judge, these people will be committing a crime for which they can be prosecuted.
When the Minister of Justice was presenting this bill earlier this month, he was saying that this is a way to get at the heads of organized crime. Let us not kid ourselves. There is a threshold for the police and the state in general -- that is, the Attorney General in the province. There is a threshold that must be satisfied. You must bring something before a judge to satisfy that judge that there is reasonable fear to think that this person will commit a criminal organization offence.
This must be brought before a judge so that the judge can make up his or her mind in favour of the Crown. It is not automatic and it should not be automatic, because this provision will limit, to some extent, the freedom of the individuals we are talking about. That limitation is put on them because of the reasonable fear that exists that this person will commit a serious crime, namely, either participation in the activities of a criminal organization or the commission of a crime punishable by five years in association with and for the benefit of that criminal organization.
The state must make up its mind at that point in time. Is it worth our while to take this person before a judge in order to have conditions imposed on him or her? In order to do that, we must bring some evidence before the judge. They must make that decision. From our perspective, at the very least, this is needed in order for this piece of legislation to be constitutional and to be sound from a policy standpoint.
Having talked about those two measures, let me go very quickly through the other measures that are to be found in this bill.
We have been told that in the province of Quebec -- and we have seen through the media -- approximately 50 of the bomb explosions that have taken place in the last three years, have taken place at the instance of organized crime. We all need to appreciate that organized crime may represent a small number of people, but there are people around that nucleus that are helping in the commission of those offences.
Generally speaking, to help deal with the problem concerning the use of bombs and explosives, the Minister of Justice is proposing the creation of an offence. This is found on pages 3 and 4 of the bill, concerning the creation of an offence for someone who is in possession of explosives in order to help organized crime. Again, we are using the same language, namely, "for the benefit of, at the direction of or in association with a criminal organization". The concept is that when you are helping organized crime by being in possession of explosives, you are guilty of a crime that is punishable by 14 years in prison. That sentence is to be served consecutively. This is exactly the same regime as we have been talking about with respect to clause 467.1.
This should prove to be a deterrent to people helping organized crime. We know from the intelligence that we have that organized crime figures do not keep those explosives with them. They use other people to do that. The people who will be doing that, knowing full well that they are doing this for organized crime, will be guilty of a crime that is serious. Presently, the offence for possession of explosives simpliciter is punishable by five years. When it is done at the instance of organized crime, it would be 14 years. That penalty, whatever it will be, is a maximum 14 years, and that sentence is to be served consecutively. There is a lot of discretion left to trial judges to impose the appropriate sentence, but that sentence will have to be served consecutively.
The bill also has a number of measures to help the police with investigative tools that are available to them right now, but to make them more easily accessible when we are talking about organized crime. I am speaking here of wire tap or electronic surveillance. There are measures to that effect and we can get into them, if you wish.
There are some measures to better deal with the proceeds of crime. We have been told, and we strongly believe, that the way to attack organized crime is to take profit out of crime. Measures are being proposed here to help the police and the Attorney General in the province to do a better job with proceeds of crime and to take profit out of crime.
There are measures here that deal with search warrants, and there are measures that will address what we call in our jargon "instrumentalities." Presently, the scheme that is contained in the Criminal Code permits the state to freeze and then forfeit the proceeds of crime -- that is, what it is that can be linked to a particular crime. You commit a crime; you get some profit out of that crime. The state can go after the profits.
With respect to "instrumentalities," this bill is proposing that the state would be able to go after the instruments of crime. That means what the individuals have used in the commission of the crime, for example, a car or a boat or a plane. On the basis of this bill, it would be possible to go after these instruments, which may or may not be the proceeds of a crime. The source of funds for the purchase of these instruments may not be crime. It would be possible, on the basis of this bill, to go after these instruments, which is not something that is possible to do right now with the present scheme that is contained in the Criminal Code.
With respect to those instruments, we have proposed that this be limited to things that are not real property. In French, this is des immeubles. The reason for this is because we have heard over the years that going after real property would be very problematic from a policy standpoint, and we accept these arguments.
However, the minister is saying that it should be possible to go after, for instance, bunkers. These are immeubles. These are real property. These are premises that have been fortified or modified significantly in order to help organizations commit crimes. Maybe some of you have seen some of those on television. Maybe some of you have visited neighbourhoods where there are such premises. The minister is proposing that, with respect to that kind of real property, it would be possible for the state to go after bunkers, fortified houses that are used for drug trading, or something of this sort. This is possible on the basis of this bill.
As you can see, a rather large package of measures is being proposed by the Minister of Justice. They are based, by and large, on the original concepts I was talking about, namely, the creation of the offence contained in clause 467.1 to participate in the activities of the organization, and also to give the state the power to bring organized crime figures before a judge to impose some conditions on them. There are other measures that I have tried to describe as quickly as I can so that I am not taking up too much of your time in a long presentation.
Mr. Bobiasz, who is one of the main architects of this bill, and I are available to answer your questions.
Senator Beaudoin: My first question is on the definition of the crime. It is a new crime. Two words are fundamental: "Participant" and "party." There is one expression that is a bit prima facie, namely, "or substantially contributes to the activities of a criminal organization." In French, it is translated, "ou y contribue de façon importante." Can you give me an example of that?
[Translation]
Mr. Roy: When we look at the wording of section 467.1, I think it is important to understand when exactly an offence is committed and when exactly an individual is liable to imprisonment for a term of 14 years. Subsection (b) refers to someone who is:
... party to the commission of an indictable offence ...
Subsection (a) describes the circumstances surrounding the commission of the offence. Subsection (b) refers to someone who is a party to the commission of an offence and who is liable to imprisonment for five years.
For example, an offence under subsection (b) could be the possession of a restricted firearm without the proper authorization and this offence would be punishable by imprisonment for five years. In the case of an individual who is a member of a criminal organization, possession of this firearm could now be a crime punishable by imprisonment for 14 years. However, for the term of imprisonment to increase from 5 years to 14 years, there must be overriding circumstances and these are described in subsection (a).
The individual in question must be someone who is familiar with the activities of the organization with which he is involved. This provision goes on to mention everyone who:
... knowing that any or all of the members of the organization engaged in or have, within the proceeding five years, engaged in the commission of a series of indictable offences...
Therefore, the person that I am prosecuting must be in possession of this knowledge. The law also requires that the person in question participate or substantially contribute to the activities of a criminal organization.
This means that the individual must have some knowledge of the organization in question and that furthermore, he be associated with it through some form of participation, but not necessarily participation in criminal or gang activities. The issue here is participation in gang activities, that is knowledge of their existence in general and knowledge that members of this organization are committing serious indictable offences.
This establishes the parameters. The individual in question commits a serious indictable offence, punishable by 5 years in prison, and when he does so for the benefit of this criminal organization, he becomes guilty of a more serious offence, one punishable by imprisonment for 14 years.
As for participating in a gang activity, let me give you the example of a person who supplies hot dogs to a gang for their annual picnic. I will not name anyone because we are on the record and this case has been mentioned recently because of the events that occurred in Quebec. In our view, this person would not be guilty of an offence within the meaning of section 467.1.
The key is participation to some degree in the activities of the criminal organization and knowledge as well that members of this organization will eventually commit an indictable offence. Requiring anything less than this provision requires would be very risky indeed.
Therefore, the test is the substantial contribution to the activities of a gang and that is where "substantially contributes" comes in.
Senator Beaudoin: The words "substantially contributes" are not as strong as the word "participates," but the word "substantially" is nevertheless included. And of course the judge will interpret the evidence presented.
Mr. Roy: Indeed, the state will have to satisfy this criteria or test and if, hypothetically, these cases do go before a jury, the latter will also have to be convinced that the contribution was substantial. I do not think there is any need in law to try and define this more clearly. You are more familiar with the court rulings than I am, but decisions such as Canadian Pacific and Nova Scotia Pharmaceutical do not require Parliament to provide a more accurate definition. Common sense can prevail in making this determination and as Justice Gonthier pointed out in these two rulings, this matter can be the focus of a legal debate.
Senator Beaudoin: I agree with the definition. My second point concerns the definition of "criminal organization" found on page 2 of the bill.
[English]
Senator Beaudoin: "Criminal organization" is defined in clause 1(a), on page 2 of the bill, as "having as one of its primary activities." Why do you use the word "primary"? Even if it is not one of the primary activities, it is still a criminal act of a very high standing. However, it must be one of the primary activities?
Mr. Roy: The use of the concept "primary activities" in this context is to ensure that not all sorts of groups are caught by this particular definition. If you have a group of individuals who commit one crime together, it should not be called a criminal organization. In order to become a criminal organization, it must be that what you are together for, basically, is the commission of offences. That is why we came up with the concept of "primary activities". You must be doing this for that purpose, generally speaking, and it is not your only activity.
We know that some of the motorcycle gangs, for instance, have other activities. They are not committing crimes day in and day out or 24 hours a day. They are doing other things. They can go for rides. They can look for support from each other, and that support may be perfectly legitimate. This is not what we are after. We are after those groups that are committing crimes as one of their primary activities. This is one of their raisons d'être. That is what the words are trying to capture here.
Senator Beaudoin: Why the number five? Is five a magic number? Why not four or six?
Mr. Fred Bobiasz, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Had we selected four, why not three or five? If we selected eight, why not five or three? We did spend some time on this but the basic debate was as between three and five. One of the things we did in developing these proposals was to examine some American legislation which deals with similar problems, and they have three approaches, essentially. They do not say anything with regard to numbers. They use three; they use five. Looking at what they have done and the reasons that we could determine why they do it, we came to the conclusion that we needed a number.
Had we picked three, I think the argument -- and, I think it would be a reasonable one -- is that we are not really talking about an organization or a group; we are talking about a few people who get together.
Senator Beaudoin: Yes, to kill someone every now and then.
Mr. Bobiasz: Not necessarily to kill someone now and then, but three young people living in a house, for instance, and one or more -- or maybe even all of them -- engage in casual drug traffic. That is not good. That is criminal. We certainly would want to pursue that, but we do not necessarily see that as a criminal organization. Five is getting to the level where we can fairly impute responsibility, in a corporate sense or in a group sense, to the activities done by one or more of the members.
Senator Beaudoin: We must select numbers and five makes sense.
Mr. Bobiasz: There was a suggestion that there be two, but then we were faced with what to do with relationships -- that is, people who are married or who are together. We felt that there would be too many criminal organizations.
[Translation]
Senator Nolin: Mr. Roy, Mr. Bobiaz has just informed us that a number had to be given. I think that this is important because if we do not mention a number, and simply go with the word "group", the courts could very well find that more than five persons are required. Five is not a maximum, but rather a minimum. That is why it is important to give a figure. A judge could well find that a group consists of 12 people. Regardless of the number, the intent was to target criminal organizations engaged in activities with a criminal intent. That is why a number had to be given.
Mr. Roy: I agree completely with you.
Senator Nolin: If five is not a good figure, come back and see us and we will reduce it.
[English]
The Chair: That is more of a comment than anything else.
[Translation]
Senator Roberge: I have to tell you that your explanation of "primary activities" should please many who must be listening to what people are telling us. I must say that I am very satisfied overall with your bill and would like to congratulate you on it. It is a step in the right direction and in time, we will see if there is need to improve it in any way.
When did you start working on the proposed legislation?
Mr. Roy: I would have to say that work first began on the organized crime question in early 1995. A group of police officers and Mr. Beauchesne, a lawyer for the Toronto police force who is here today, called upon the federal government to look into organized crime.
A task force was created in 1995 and the Department of Justice began to show a special interest in this matter at the Regina Convention of Chiefs of Police in the summer of 1995. I believe the date was August 1995 and Mr. Beauchesne can tell me if this is correct. In February 1996, submissions were made to the Minister of Justice, Mr. Rock, and to the Solicitor General, Mr. Gray, here in Ottawa by representatives of the Association of Chiefs of Police as well as by police officers working in the field and dealing on a daily basis with the problems associated with organized crime. This February 1996 meeting lasted four hours.
In September 1996, the same two ministers, Messrs. Gray and Rock, convened a two-day national forum on organized crime in Ottawa. In attendance were representatives of police forces across the country, that is from Vancouver, Atlantic Canada, Toronto, Montreal and the RCMP, as well as representatives of the academic community. Professors from the Universities of Montreal, McGill and Toronto, were on hand, including Professor Brodeur, a familiar name in light of his comments to the media, and Professor Weir of the University of Toronto, who now heads up the centre on organized crime. Also on hand were various federal department representatives concerned about organized crime as well as representatives of the Canadian and Quebec bars. Over a two-day period, participants examined ways of dealing with the issue of organized crime. The federal government tabled a number of proposals which to some extent are included in the bill before you today.
Forum participants concluded that the criminalization of membership in an organization was unnecessary and perhaps even questionable from a constitutional standpoint. At this stage of the game, there are other methods that should be considered to tackle the problem of organized crime.
A number of recommendations came out of this forum and some of them are included in the bill. Others are not because work is still ongoing at the federal level in an effort to give the State and the police specific ways of dealing with this problem. However, this requires some additional work and the Justice Minister is not prepared at this time to unveil any proposals.
The work continued throughout the fall and a series of events that we all know about occurred in the province of Quebec. It may be somewhat of an exaggeration to speak of a cry for help, but the government of Quebec certainly asked the federal government for assistance in dealing with this problem. This assistance was forthcoming five or six weeks ago.
The Minister of Justice instructed his officials, that is Mr. Bobiasz, myself and other departmental officials, to try and draft a bill based on the work that had been done in 1996 and on the work undertaken by the chiefs of police, taking into consideration as well the recommendations made by Quebec following the events that occurred. We were asked to work with all sides to devise a bill which would be constitutional, produce results in the short-term and be well-received by all stakeholders.
The bill was tabled on April 17 last and as far as the Justice Minister is concerned, the response to it has been extremely positive. The mayors of the Montreal and Quebec city regions were delighted with the legislation. Public Security Minister Perreault was also very pleased. The day after the bill was tabled, Minister Bégin said he was satisfied overall with it. I also understand that we have the broad support of police forces. After the bill was tabled, people commented favourably to the media that among other things, we had not fallen into some of the obvious traps. I am thinking here in particular about the comments made by Professor Brodeur on the news magazine Le Point.
Overall then, we appear to have done a fairly good job. We hope that the bill will be passed by the Senate so that police forces are given the additional tools with which to deal with this extremely difficult problem. This bill now before you will give them the tools they need.
Senator Roberge: I am nevertheless frustrated by one thing. Participants in the forums strongly recommended that this type of legislation be introduced and with the tabling of this bill on April 17 last, the Senate does not have a great deal of time to examine and analyze the legislation as it should.
I certainly do feel that the people of Quebec and the media put pressure on the minister and this helped to speed up the process. Otherwise, the bill would not have been tabled in time and that would have been unfortunate.
Senator Nolin: Better late than never.
Mr. Roy: The minister indicated that he did not want this bill to be viewed from a partisan standpoint. He could well have decided not to do anything, allow for more time, and wait until the fall to draft a bill. He received a similar request, particularly from Quebec, but the talks that were held in the month preceding the tabling of the bill led him to believe that other regions were also dealing with the problem of organized crime. Therefore, he did receive some support for his initiative.
The minister could have chosen to say: "I will not introduce legislation because people will say that I am taking advantage of the situation, that I am not giving people a chance to do their job, or that I am only acting because people have asked me to." He opted for this course of action in the hope that the bill as drafted is a solid piece of legislation and that it will be given serious consideration.
Mr. Bobiasz and the other officials from our department are quite prepared to spend all the time required on a clause-by-clause study of this bill to ensure that you are satisfied with it.
Senator Roberge: Thank you. I have another question concerning the bill. Undoubtedly you saw this article in this morning's La Presse. It was reported that the court has restricted the action of the RCMP and that the Court of Appeal had ruled that, in Ontario, it was illegal for the RCMP to offer to sell drugs to traffickers.
My question concerns another bill which has just been adopted. Since you are also responsible for it, would Bill C-17 remove this impediment?
Mr. Roy: Bill C-17 does indeed help to alleviate some of the problems that you spoke of, but you are probably referring to Bill C-8 which was adopted by this Parliament.
Senator Beaudoin: I was under the impression that it was Bill C-17.
Mr. Bobiasz: Some of the provisions in Bill C-8 and C-17 have helped police officers a great deal in their efforts to control drugs. Bill C-8 deals with drug trafficking, while Bill C-17 contains provisions to help police officers deal with the proceeds of crime and activities such as money laundering.
Overall, the two bills will help police officers considerably. That is why, when the minister visited Quebec five weeks ago, police officers asked him to do whatever he could to have Bill C-17 passed.
Senator Roberge: I have another question, with your permission.
[English]
With respect to the proceeds of crime, you talk about property built or significantly modified for the purpose of facilitating the commission of a criminal organization offence.
From what I gather from the police corps, for example, the bunkers themselves are not created and are not utilized for planning of crime. It is more of a social club area where they meet. They do not plan their crimes in the bunkers. What would happen in this situation?
Mr. Roy: The answer to that question can be found in the definition of "offence-related property", which is at page 3 of the bill. It must be able to facilitate the commission of a criminal organization offence. It is not only having security measures like cameras. An example I gave elsewhere was to say that if all you need to have is a place that has been fortified or has some security measures, and that is enough to seize it, some people will try to seize the parliament buildings that we are in. There must be something more than simply security measures being taken, big fences, cameras, and guards around. It must also be that you are doing this for the purpose of facilitating the commission of offences.
If we are talking about the bunker that you are referring to, where nothing is taking place in terms of crime, the policy consideration that must be taken into account is: Why would you want to seize this if nothing wrong is taking place in there? There is the policy consideration and there is also the fact that, from a definitional standpoint, we would catch the buildings we are in. Certainly, this is not what the Minister of Justice would try to do.
Senator Lewis: I think your point was that the bunker itself is not an offence-related property unless it is for the purpose of facilitating offences. This is just following along what you said. There must be something to show that the bunker is for the purpose of facilitating offences.
Mr. Roy: Yes.
Senator Nolin: They do not even have to prove that an offence must be committed, merely that it is being facilitated. That is fine.
The Chair: Just add that little caveat.
Senator Jessiman: I should like to look at clause 467.1, on page 7. Is "series" defined in the Criminal Code?
Mr. Roy: No, it is not.
Senator Jessiman: Has it been adjudicated on in any way? I know the word "series" in the Income Tax Act is not defined. What do you mean by "series"? Do you mean two or more, three or more? Do they have to be the same kind of act if they are part of a series? In the Income Tax Act, they must be related.
I should not like to think that there would be a defence where they might commit a number of crimes but they may not be in a series. What do you understand "series" to mean?
Mr. Roy: If it is agreeable to you, Mr. Bobiasz will address this question.
Mr. Bobiasz: Minister Rock was asked that question when the bill was dealt with in Committee of the Whole earlier this week. The first thing he said was that we would look to the dictionary to get its common, everyday meaning.
Senator Jessiman: Have you looked with him now?
Mr. Bobiasz: The next thing he said, after looking at the dictionary, was that it means more than one, but that what is very important, to distinguish multiple offences, is that they happen in a temporal sense -- that is, one after the other, not all together. The question was: Should we have said "more than one offence"? There are a number of situations where people who get involved in criminal transactions do it in a way so that many offences are committed at the same time. The notion of "series" here is to suggest that there should be more than one offence and they should be separate to a certain extent in time so that they are sequential.
Senator Jessiman: I should like to define it, if I may. I would think it is more than two, but let us assume it is just two. It is certainly more than one. You have agreed with that. The minister said it must be more than one offence, correct?
Mr. Bobiasz: Yes.
Senator Jessiman: You have "any or all the members." Let us deal with "all". That is to say, either all the members or any member. I suggest that "any" means any one member. Let us assume we only have five members. Each one of them separately could have committed an indictable offence in the last five years. They are now part of the organization, but they would not be caught by this section. Is that correct?
You have five members and each one has committed a crime. Do I assume that not only they must have been engaged in the commission of an indictable offence but also they must have been convicted? Unless they have been convicted, how do you know they have been part of it? Therefore, there must be a conviction as well.
I am trying to look at the wording here the way the defence lawyer will when you charge someone. You have five members, each one of whom has committed a crime in the last five years that fits this. Any one member has only committed one crime, so they are not within a series. You still have five of them -- or, if there are ten members, each one having done something -- and they would not be caught here. I think that it could be defined so that it catches everyone, unless you mean that each individual member must have committed a series of crimes because among them or between, if there are two, they could commit two or less crimes and they will not be caught by this section.
Senator Nolin: The wording is better in the French version.
Mr. Roy: Let me try to contribute to the discussion here. The offence that we are talking about is the one that is committed in paragraph (b). That individual who is charged is charged with being a party to the commission of an indictable offence for the benefit of the group that we are talking about in paragraph (a).
Senator Jessiman: Let us make it five people for the purpose of this example.
Mr. Roy: He is charged with that crime. In order for that crime to be elevated from a five-year indictable offence to 14 years, he must either know a few things or have done a few things other than the crime for which he is charged. I am using as an example the possession of a restricted weapon, a hand gun. That is punishable by five years.
Senator Jessiman: It is more than once. I think it is three times.
Mr. Roy: No. The crime that the person is charged with is possession of a gun.
Senator Jessiman: Yes, and he is convicted.
Mr. Roy: All I am talking about is that the crime of participation in the criminal organization in this particular case is being in possession of a gun.
Senator Jessiman: Right now, this act is passed and he now possesses a gun.
Mr. Roy: Yes. He is doing this for the benefit of, at the direction of, or in association with, the organization. He has that gun. In order to elevate this possession, which would otherwise be punishable by five years, to 14 years, this individual must have substantially contributed to the activities of the criminal organization. That does not mean that he has taken part in crimes with that group.
The second element is that this individual we are talking about must know that members of that group, one or many of them, have been involved in the last five years.
Senator Jessiman: It does not say "many". It says, "any or all".
Senator Nolin: It is better in French.
Mr. Roy: It is either one or a number of them.
Senator Jessiman: Well, I do not think so.
Mr. Roy: They have been engaged in the commission of serious crimes and he knows that. He does not have to be part of those crimes, but he knows that.
Senator Jessiman: However, for those crimes to be crimes, they would have to have been convicted.
Mr. Roy: Not necessarily.
Senator Jessiman: How do you prove that they are crimes if they have not been convicted?
Mr. Roy: You will have to satisfy a jury, through the evidence that is available to you, that this person had that knowledge. If someone who has killed someone else is not convicted, it is still a crime. Killing someone is a crime.
Senator Jessiman: Only if you can prove it.
Mr. Roy: Yes, if you can prove it.
Senator Jessiman: If you prove it, hopefully, he will be convicted.
Mr. Roy: Yes, but that is not the person that I am charging here. I am only charging the person who has the gun.
Senator Jessiman: I understand that. You are saying that there must be a series. I am suggesting that that is more than two.
Mr. Roy: Yes.
Senator Jessiman: So that among the group, there must be more than two. I am suggesting that if each one of them individually have committed crimes, I do not think they will be caught by this legislation. That is the way I read it. Have another look. I am with you. I am all for the bill, but do not pass a bill so that some defence lawyer will be able to say, "Wait a minute. Sure, they have committed 10 crimes, but they are 10 members. They are all separate crimes."
Mr. Bobiasz: If they each committed a crime that had no relation to their group, then they are not caught.
Mr. Roy: They should not be.
Mr. Bobiasz: This is not intended to be able to say that five people hang out together. If you can show that one committed a sexual assault, one cheated on his income tax, another one stole a car, that is it. We are dealing with a criminal organization.
Senator Jessiman: They all have to be connected.
Mr. Bobiasz: They do not necessarily have to be connected, but they must be related to the organization. That is what we are trying to capture.
Senator Jessiman: I think I made my point.
The Chair: Senator Jessiman, you very definitely made your point. We have a couple of supplementaries to your point, one from Senator Milne and one from Senator Gigantès. I will return to you following that.
Senator Milne: I am returning to this definition of "series". If a motorcycle gang or some criminal gang blows up five houses all at once, that is not a series.
Mr. Bobiasz: Senator Milne, I must agree with you, simply because that is one of the things I said. Chances are, if a motorcycle gang blew up five houses all at once, probably before and probably after they blew up those houses, they committed other offences.
Senator Milne: That could be a pretty big "probably" because you might not even know about these other offences at this point.
Mr. Bobiasz: We are giving a tool to the police to deal with organizations, many of which they know about, many of which they have been following, and many of which have been in existence for quite some time and have not gotten together for one massive criminal activity and then have disappeared. We are talking about an aspect of continuity.
Although, if they blow up five houses all at once it is a terrible thing, we probably could deal with them. If we could establish that, we could deal with them quite severely. What we are after here is to be able to develop the notion that there are ongoing groups of individuals that, over time, engage on a regular basis in criminal activity. We established that. It will not be necessarily easy to establish, but these are significant measures. Once we establish that, other people, either members of the organization or hangers on who do things in relation to that organization, can be exposed to enhanced liability if the appropriate connections can be made.
I take your point in terms of a massive explosion, but if we can establish that, we could severely punish the people who caused that explosion quite severely.
Senator Gigantès: I have only one question. Would this have covered the series of bomb explosions by the FLQ in the sixties?
The Chair:To be fair for our witnesses, that is a hypothetical question.
Senator Gigantès: There is a Mr. Villeneuve of the FLQ who is threatening new bombings now. Would this have covered the FLQ in the sixties had the clause been there, and would 14 years additional imprisonment have been tacked on?
Mr. Roy: First, you would have to satisfy a court that the Criminal Code definition is satisfied here. I am in no position to tell you that you would be able to that with the activities of that particular group.
Senator Gigantès: I just wanted the question on the record.
Senator Pearson: With respect to explosives, what is the current law on the possession of explosives? You say that the proof of which lies on the person. That is to say, if you are carrying an explosive, you must be carrying a certificate at the same time.
Mr. Bobiasz: I was just going to point that out, Senator Pearson. On page 3 of the bill that you have, section 82.(1) is in the Criminal Code now. This relates to the point that we have discussed previously about the difficulty you have in reading your legislation. In the version that I have, it is made clear what is existing and what is new. The only new thing is what is contained in proposed section 82.(2).
Senator Pearson: My second question was with respect to the comparisons with American law, because I remember how they tried to get at their Mafia through this. Their law is broader than this one, is it not?
Mr. Bobiasz: In some respects, it is; in other respects, it is not. Some American jurisdictions currently go pretty close to penalizing participation in a gang, without that participation necessarily being criminal. Obviously, we have not gone that far.
Other jurisdictions have a concept similar to ours, but they use it in a different way. They might restrict it simply to aggravating a sentence or to the availability of the local authorities to issue injunctions to try to curb the public manifestations of criminal street gangs, and so on.
Some of the elements of what we have here are similar but it does not correspond holus-bolus to any particular jurisdiction.
Senator Pearson: Have they had any serious Supreme Court decisions related to that?
Mr. Bobiasz: The Supreme Court of the United States has not. Most of the current legislation has been passed by a variety of states. They have had some decisions at the highest level within their state courts. To date, everything has stood up.
Senator Milne: I return to the first definition about primary activities. I have some concern, as did Senator Beaudoin, about including the word "primary" there. I can think of a rather bizarre spectacle of someone saying, "Yes, we blew up that house, but it was just a sideline. Our primary concern is getting out and riding around on our bicycles."
Senator Roberge: That is an interesting point.
The Chair: Succinctly put, Senator Milne.
Mr. Roy: Mr. Bobiasz is suggesting that the answer to this question is the same one he gave earlier. If this is the only thing that this "group" is doing and we have the evidence, then we will be able to charge these people, prosecute them, and very severe penalties will be imposed.
This bill is talking about organized crime, not conspiracies committed by individuals to commit a particular crime. That is the definition that we are trying to convey here.
Senator Milne: This group contends -- and I can see some lawyer arguing this point very strongly in court -- that their single primary purpose is to ride around on their motorcycles.
Mr. Roy: If that is the case, Senator Milne, it is proper that these people not be caught by legislation like this.
Senator Milne: However, they are being charged with blowing up a house.
Mr. Roy: They will convicted of that, then. I think it would be proper not to apply this kind of legislation to the group you are talking about. I am sure that when Mr. Borovoy appears, he will tell you that it would be terrible if you were to do something like this. I would agree with Mr. Borovoy on that.
Senator Moore: Proposed section 82.1 states:
A sentence imposed on a person for an offence under subsection 82(2) shall be served consecutively to any other punishment.
I certainly support that. This is being done by way of a deterrent.
I find it interesting that we are making the effort to have such sentences served consecutively for this type of offence, yet we do not do it for murder. This is perhaps a comment. We have had various bills before the Senate and before this committee in the last month or so. I would suggest that, in situations where a person is convicted of murdering more than one person, those sentences should equally be served consecutively only as a deterrent. I know you only have one life, and so on. That is a lawyer's comment. I am a lawyer, but, as a deterrent if nothing else, and as a policy, and to provide some feeling of empathy to the families of victims, that should be done. I would ask you to look at that in your deliberations sometime.
Mr. Roy: You may want to consider Bill C-45 -- which was passed recently and became law in January -- whereby, when you have killed more than one human being, in the future you will not be able to use the provisions of section 745.6 of the Criminal Code and ask a jury, after having served 15 years, to review your case and possibly apply to the National Parole Board. Something has been done in that direction already by the Minister of Justice. That is only for information purposes.
Senator Lewis: I wish to quickly deal with the peace bond. Apparently, this refers to "a person". That could be any person. It is with the consent of the Attorney General. The court can order that person to enter into a recognizance to keep the peace for any period that does not exceed 12 months. If it was just for three months, when that time expires, should the person still fear on reasonable grounds that this person shall commit a criminal organization offence, then another application must be made. In other words, there is no way of renewing the bond.
Mr. Roy: No. What is being proposed here builds on the notion of the peace bond that has been recognized at common law for hundreds of years. Professor Bobiasz, who used to teach this at university, will be able to be more precise as to when this has emerged at common law.
That general power is now found under section 810 of the Criminal Code. An addition was made to deal with pedophiles. That has become section 810.1. That section has been ruled to be constitutional by the Ontario Court General Division in the Boudreo case. You have heard from colleagues earlier this week about Bill C-55, which just received third reading yesterday.
There is another peace bond that is created in there to deal this time with high-risk offenders. This is one to deal with organized crime figures. The basic scheme that you had under Bill C-55 with respect to high-risk offenders is being followed here, except that the crime that is being considered is one of a different nature, namely, the commission of organized crime offences.
The Chair: Thank you for your presentation. I would also ask you to stay, if it is possible, until after we have heard from the other witnesses.
I now welcome to the table Mr. Alan Borovoy from the Canadian Civil Liberties Association.
Mr. Borovoy, I have chaired this committee now for two and one-half years. This is the first time we have had the privilege of having you here. I have long been an admirer. I do not always agree with everything you say but I think that your point of view is necessary out there. You are very welcome here.
Mr. Alan Borovoy, General Counsel, Canadian Civil Liberties Association: I am very much afraid that anything I say now hereafter will come across as a terrible anti-climax. I should also add that I have never met anyone for the first time who did not feel the need to tell me that they did not agree with everything I say. Having said that, I am pleased to meet you, too.
In the opinion of the Canadian Civil Liberties Association, one of the most vital roles that the Senate of Canada can play is to help promote the integrity of the processes in the House of Commons. In our view, ultimately, the will of the House of Commons must prevail, but we believe that the Senate can help to ensure that that will is the product of an informed and reflective debate.
Unfortunately, Bill C-95 was the product not of deliberative debate but of precipitous stampede. The bill was introduced a few days ago. None of us had seen it prior to that. It was subjected to a process of instant consideration. Within a couple of days, it was subjected to first, second and third readings. There were no committee hearings of which I am aware, very little debate, very little opportunity for expert commentary, and the public had very little opportunity to digest it.
Representatives of the government will point out that they have been involved in lengthy consultations prior to the introduction of the bill, but as useful as that is and can be, it is no substitute for a considered examination of the bill's actual contents.
One of my mentors in the practice of law said to me many years ago that every time he looks at a bill or a statute, he sees something in it that he did not see the last time he looked. It is, therefore, our view that a proper process must allow for that kind of opportunity and that it was missing here.
On the basis of what has been necessarily a brief glimpse at this bill, the Canadian Civil Liberties Association has come to the conclusion that it contains a number of dubious features. The best I can do in the circumstances is identify some of these provisions. I cannot identify all of them, and I know you have not the patience to wear me out -- at least, I have not the patience to do it to you. I will put it that way.
I should start with the recognition that we share with responsible Canadians the desire to reduce the harm that is done to society by organized crime. The best I can do in the circumstances is identify some of these provisions. However, I cannot identify all of them, and I do not have the patience to do that you.
I should start with the recognition that we share with responsible Canadians the desire to reduce the harm that is done to society by organized crime. We are not prepared, however, to assume that the achievement of the objective requires the expansion of the already considerable powers of the police. Without Bill C-95, the powers of investigation, surveillance, detection, arrest and prosecution could hardly be described as puny. A prerequisite, then, for any significant expansion of these powers is a demonstration of why it is necessary. Apart from a recital of some of the horrors perpetrated by some of these criminal gangs, the public record is remarkably devoid of a demonstration or even an explanation as to why the existing powers are not adequate.
A centrepiece of this bill is the definition of a criminal organization, which is a group of five or more persons where one of its primary activities is the commission of indictable offences that carry a maximum sentence of five years or more in jail. This definition is so broad that it is quite capable of catching within its net groups that have no relationship to the kind of criminal gangs for which the bill was designed.
Consider, for example, certain groups involved in recurring and frequent acts of civil disobedience such as some environmental groups, aboriginal groups, abortion organizations or student groups. Certain of their subgroups may be engaging in acts of civil disobedience on a recurring basis. If they engage in the wilful interference with the enjoyment of property that is worth more than $5,000 -- for example, logging operations, a golf club, a ship, an abortion facility, an educational institution -- they may very well be guilty of the Criminal Code offence of mischief which carries potential sentences of up to 10 years. While society does not have to accept even those acts of civil disobedience, we should not want to treat such groups with the kind of weapons that have been created for these criminal gangs. That is something that we should not want to do.
For some comic relief, there is one organization that, arguably, this definition might well have applied to a few years ago, namely, the RCMP. When we get to primary activities, you see that I am sensitive to that definition. The RCMP was involved in hundreds of unlawful mail openings. Indeed, there were so many of them that the force actually centralized the authorization for officers to engage in them. I do not cite this because I am afraid for the Mounties; I cite this as some indication of the foolish breadth of the definition before you.
To use the language of the literature put out by the government, the government wants to make it easier for the police to use electronic surveillance against gangs, so they propose the removal of the last-resort requirement for electronic surveillance. Why in the world is it necessary to make it any easier for the police to use electronic bugging in these situations? Perhaps I float in rarefied circles, but I have never heard a serious claim that the police have any difficulty getting permission to use electronic bugs against criminal gangs. Where is the evidence of this?
The bill also proposes, insofar as criminal gangs are concerned, to extend the period of an authorization from 60 days up to one year. This provision will accomplish nothing more than to reduce the accountability of the police. It will not do anything else but that.
These safeguards have been put into our wire-tap legislation for an important reason. It was recognized a long time ago that electronic bugs perpetrate pervasive intrusions invariably on the privacy of innocent people. Even though some nasty criminals might be the intended targets of the bug, the technology is such that inevitably other people's conversations will be intercepted by the bug. Criminals, after all, interact with non-criminals. Very often non-criminals on these premises are interacting with each other. It was in recognition of how enormous this capacity to invade is that so many of us insisted on these kinds of safeguards.
I hate to give away my age if it is not otherwise obvious, but I was involved in the debates when it was first introduced. We were solemnly assured that everyone knew what a pervasive instrument this was. We were told then that they wanted it for organized crime, and we were solemnly assured that it would be used as a last resort. Now, without any demonstration that the police have any difficulty getting authorizations for this, we have a proposal to remove that from the table. Many of us argued for short periods for the duration of an authorization because we wanted to ensure that this peculiar eavesdropping technique would be made subject to constant judicial scrutiny. It just could not be left alone without constant periodic judicial scrutiny.
I now come to another contentious feature of the bill -- that is, the one dealing with peace bonds. In this, I must differ somewhat with some of the remarks that were made to you earlier. In fairness, I do not blame the speaker. He did not have an adequate opportunity to spell out some of the critical distinctions, but I will. The kind of peace bond that has existed traditionally in the common law was a much more narrowly focused kind of instrument. It arose when a particular person or persons believed they were in danger from someone, and they went to court and secured a peace bond which essentially kept the potential wrong-doer away from that person. The amount by which it intruded on people's freedoms was, therefore, rather limited.
What bothers us is that this provision will empower the courts to impose what may turn out to be significant restrictions on people's liberties and particularly on their ability to associate with their friends, colleagues and associates, even though such people have not been convicted of or charged with the offences at issue.
Incidentally, in response to another comment that was made earlier, it is true that a court of general division has upheld the constitutionality of an existing incarnation of this rather regrettable instrument, but you should know that that is under appeal and the final results are not yet in.
All this can happen if there exist what the bill calls reasonable grounds to believe that a person will commit a gang-related offence. I like to call this punishment by clairvoyance. We have to engage in acts of prophecy and we dispense with the need to prove people guilty of offences or even to have reasonable and probable grounds to believe that they have done it as a prerequisite for intruding so pervasively on their freedoms.
This raises an interesting point insofar as the position taken by Justice Minister Rock. He has said many times that he did not wish to criminalize mere membership in these gangs. Our organization very much appreciates this position and we welcome it, but let us look at the rationale involved here. We do not want to criminalize mere membership because we do not want to make it a crime simply to associate with people who may be unsavoury.
What will the peace bond effectively do? In large part, it will prohibit people from associating with other people in circumstances in which it is otherwise completely lawful. To what extent, then, is the Minister of Justice permitting through the back door what he has rejected through the front door?
In our view, a critical prerequisite to encroaching on the traditional safeguards of the citizen must be a demonstration of the need for it. We are prepared to say in our organization that there are no absolutes in the real world. I make that acknowledgement and concession readily; there are no absolutes. However, we also must appreciate that some of the safeguards we are talking about -- that is, for trials and privacy -- are at the same time fundamental to what we mean by a democratic society. I suggest to you that there is very little on the public record that demonstrates the need to do this.
All of this leads me to suggest to this committee that the bill in its present form should not be enacted. It should not be enacted this way. If the political will survives the next several hours, let the house have another whack at what is involved here. There is no great urgency to pass this overnight. There has been no demonstration. After all, we are not facing an emergency. There are serious problems, but very little in the way of public safety will be jeopardized by having a cool, rational look at some of these provisions. An awful lot in the way of traditional safeguards will be jeopardized if this bill is enacted in its current form.
Senator Beaudoin: Mr. Borovoy, I understand your concern. I remember the times we discussed this with Walter Tarnopolsky in our institute. Obviously, the Charter of Rights and Freedoms exists.
In this case, we obviously give a lot of powers and restrict some rights. The question is whether those restrictions are reasonable in a free and democratic society. That is my problem. The problem exists in Quebec and elsewhere also. You say that the evidence does not show that the police need further or stronger powers; however, success has not been great so far. You will probably reply that it is a question of organization or competence, but you do not solve the problem by giving more powers to the police.
If adopted, this bill will be challenged because we give a lot of power, but I am not convinced that it is unreasonable in a free and democratic society sometimes to do what we are contemplating to do now. How do you come to the conclusion that it cannot be justified?
Mr. Borovoy: I hope I am being clear. I would not take the position that such powers could never be justified. That is not our position. The position is that no one has demonstrated why the considerable powers that already exist are inadequate to do the job.
Let me take you back to the problem as I see it. I could tell from the earlier discussion, about what if this happens and what if that happens, that there is an awful lot here. Those are perfectly reasonable questions. At the very least, should these issues not be debated in a calmer atmosphere where witnesses even more competent than I could come forward to the table and debate these things properly? This thing should not be rushed through this way.
Senator Beaudoin: The minister has said he will revisit the bill in six months, but that is another thing. I understand that this is not good enough for you, because you say we should not act if there is no conclusive evidence that the police need more powers. This is your thesis.
Mr. Borovoy: It should be reasonably demonstrable. I am not suggesting an impossible test, but we do not even have that.
I take you back to the clause on electronic bugging. With the greatest respect to every one involved, that is nothing but gratuitous posturing. It accomplishes zero. Of course, what it will do is start to relax some very important safeguards. However, the law enforcement benefit of that is zilch.
Senator Beaudoin: I see your point. I do not want to go further than that.
The Chair: If there are no other questions from members of the Senate, then I wish to thank Mr. Borovoy.
Mr. Borovoy: Do you mean I cannot have more of a fight?
The Chair: I am sorry, no. Perhaps that is because this committee has put in an extensive numbers of hours. Many of us think we should be giving much more time and attention to many things. Thank you.
Mr. Borovoy: Even if I am going home frustrated, I thank you.
The Chair: We have joining us now at the table Professor Patrick Healy from the Faculty of Law, McGill University. He has just reminded me it is a good thing that he is going on sabbatical because all the laws have changed in the last week. Considering the way we have been working around here, that is a pretty appropriate statement.
Professor Healy, welcome. Please make your presentation.
Professor Patrick Healy, Faculty of Law, McGill University: I should like to have volunteers from this committee come to my classroom to explain why the law changes quite so quickly. In that way, my students could hear it from a responsible parliamentarian as opposed to their professor.
I have some brief comments to make, after which I will take any questions that senators might like to address to me.
It seems to me that the Government of Canada has made a decision in policy that at this point the tools of the criminal law that deal with organized crime are insufficient to deal with the harm that is done by organized crime in Canadian society, and has decided to amend the criminal law in order to expand the range of police powers and other forms of repressive state action with respect to this very difficult and very serious form of criminality.
I am afraid that I have not been here during the course of the morning to hear the testimony of other witnesses. I was only able to hear the last few words of Mr. Borovoy's typically eloquent and concerned remarks. I am afraid, however, that I do not share all the anxieties that he has about this legislation.
The government has recognized the harm that is done by organized crime in Canada and has proposed this bill as a measure to deal with the harm that we find in Canadian communities. I come from Montreal, where, perhaps as vividly as anywhere else, the dangers of organized crime are apparent on the streets.
Whether the government has made an appropriate response to this problem is for you to judge. It is my view that this bill, though it does expand the range of the criminal law, both so far as police powers and substantive law are concerned, is a measure that reflects restraint. As some of you will remember, in 1982, the government of Canada committed itself officially to a policy of restraint in the application of the criminal law. This bill is consistent with that policy of restraint -- a policy that has never been repudiated and has been espoused in principle by successive governments of different parties. While it is a measure that expands the criminal law, it is a restrained measure, although there are perhaps some small concerns that might be raised about it. I will be very quick in identifying what those concerns are.
In my view, this legislation is not weak because it raises an obvious constitutional flaw. As Senator Beaudoin said in his question to Mr. Borovoy, there is no doubt that this legislation will be challenged, but that is simply a statement of the obvious with any form of criminal legislation in Canada. All forms of criminal legislation will at some point or another be challenged with respect to their constitutional validity. Concerning the police powers in this bill, the sentencing provisions and the substantive offence, there is no obvious reason, on my view of the jurisprudence, to say that this bill is constitutionally infirm. So that I would not leap to the conclusion implied in Senator Beaudoin's question.
I do not think that the validity of this bill necessarily turns on section 1 of the Charter. That is to say I do not believe that it would be valid only as an exception, under section 1 of the Charter, to a breach of constitutional rights. I am not convinced that it is unconstitutional in any way at all. I say that because this legislation recognizes the scourge that organized crime has become in Canadian society and it produces measures that are tailored to the severity of the harm done in Canadian society by organized crime.
However, there is some margin for concern, and I do not think that the concern lies specifically with the way in which the legislation is drafted. It will lie with the way the legislation is applied. Perhaps at this point I do agree with some concern of Mr. Borovoy's. We must be confident that police officers, prosecutors and judges will remain vigilant and that the expanded powers provided in this legislation will be used specifically for the purposes that Parliament intends. It is possible -- and Mr. Borovoy is entirely correct in this -- for this legislation to be given in practice a scope that Parliament or the government did not intend it to have. We can only hope there will be no undue intrusion upon individual liberties, particularly the expectation of privacy, by the use of this legislation. That will require constant vigilance by prosecutors, police officers and judges.
There may be questions about the possible dangers of the overexpanded use of this legislation, but my view is that that is not at this point a reason for you to consider the rejection or even the substantial modification of the legislation that has been proposed before you.
I have one last comment to make, which is about the offence of participation in a criminal organization. One question that has been raised in conversations that I have had is whether it is strictly necessary for this offence to be contained in the legislation at all. Would there not be sufficient sanctions and sufficient repression of organized crime through the expanded police powers, expanded sanctions through sentencing, and so on? The answer to that question is that the new provision is important because it sanctions conduct that is distinguishable from any other form of conduct known to our criminal law. It does not punish simply membership in a criminal organization. It seeks to punish the accused for a pattern of actual and active behaviour, namely, participation in the activities of a criminal organization.
With the legislation, we have not been presented with a bill that would criminalize the status of a person. We have not been presented with legislation that would criminalize only the association that a person might have with others. This legislation, insofar as the participation in a criminal organization offence is concerned, goes specifically after people who do things in association with criminal organizations. It defines a form of criminal activity that, while it may be broader than the usual way in which we define criminal activity in the criminal law, is nonetheless criminal activity that is based on identifiable acts of commission. That offence is desirable precisely to identify the harm that is done by participants in criminal organizations, through their activities, to give special recognition and special sanction to the kind of damage that is done by those people acting in concert with others.
There are technical questions that will arise in the courts. Perhaps we can talk about those now, although I do not think it is necessary. For example, what would be the procedure in practice with respect to the charging and disposition of offences under this legislation? Would it be possible, for example, to charge both the substantive offence of, say, arson or the use of explosives and the offence of participation in a criminal organization, without attracting objections based on double jeopardy and things of that kind? There are issues that are technical and practical, although nonetheless important, but I do not think we need to get into them today.
What I would commend to your attention is that this is not a bill that is open to challenge on the basis that it is constitutionally weak. If it is open to challenge, it is only on the basis that it may extend the scope of the criminal law beyond what we have known before. That is naturally a reason to be concerned about the use of these sorts of powers. However, this legislation has been constructed with restraint. If it is used with restraint by police officers, prosecutors, judges, always under the constant vigilance of an active defence bar, I am not, at this stage at any rate, prepared to say that you should have any reason to withhold your approval of the bill.
Senator Beaudoin: You say that globally, the bill is constitutional and we may even conclude that we do not need the test of section 1, whether it may be justified in a free and democratic society. If that is the case, I return to my first point.
If we need clause 1, it may be reasonable. However, if we do not need clause 1, then I do not see why we should not adopt the bill. You are concerned with the application of the law and you are correct in that application. Nevertheless, the definition is precise. My impression -- and, I should like to have your opinion on this -- is that the courts will construe the application of this act not in a very generous way because it gives exceptional powers to the police. I think the court will not be too generous for the interpretation of the definition. Is that your point of view?
Mr. Healy: As you are a law professor, you will understand immediately that I am reluctant to predict what our courts will do. However, my view is that this legislation does not raise any obvious constitutional obstacles. That is to say from my knowledge of Canadian criminal law under the Charter, I am not aware of any reason that would lead me to a firm conclusion that this legislation is unsound. Again, that does not mean that there will not be a challenge. Of course, there will be a challenge. It is one of our great industries to have constitutional challenges. Nevertheless, there is no immediate reason to say that it is constitutionally unsound.
I hope the courts will recognize that in giving wider powers to the state, particularly with respect to the police powers, there must be a constant vigilance against abuse of the extension of those powers. It is easy for those powers to be abused. It is always easy for powers to be abused, even the powers of arrest that we have had for so long can be abused. The possibility of abuse is something over which I am sure the courts will be constant in maintaining strict control.
We must be hopeful that the police and the Crown prosecutors will not overreach themselves in trying to use these extended powers for the investigation of what might be considered ordinary crime. We also must be hopeful that the wide definition of a "criminal organization" will not lead to the investigation of organizations that are ostensibly legitimate, perhaps even organs of the state, on the basis that the increased powers are necessary for an effective investigation.
Would we have used these powers, for example -- and, I will take a historical example rather than be too provocative -- to investigate the RCMP in the 1970s? No. That requires someone's exercise of judgment about what is the appropriate use of these expanded powers. It is not a question of law as to what the Charter allows and does not allow. It requires the responsible exercise of good judgment.
Senator Beaudoin: That answers my question.
Senator Milne: Professor Healy, I think the question is not would the state have used these powers but could the state have used these powers? Clause 11 states:
467.1(1) Every one who
(a) participates in... the activities of a criminal organization knowing that any or all of the members of the organization engage in...
Could this clause be used, for example, to charge the spouses of members of motorcycle gangs? They usually participate in their husbands' activities as far as the motorcycling part is concerned. I see this whole thing as being so broad that I am concerned about it.
Mr. Healy: You raise a good question. It is not just about the spouses of people who are otherwise more directly implicated in organized crime. There are any number of possible hypotheses about who could be caught by the legislation. Your concern, quite legitimately, is whether the legislation might catch innocent people in the wide net that is being thrown.
Your specific question is: Could it happen? Yes, it could happen. Of course, it could happen. It happens now with the kinds of offences that we have, particularly in relation to conspiracies and other sorts of inchoate offences. We know that danger already.
Once again, the hope that I would express to you is that in making the decision whether to investigate or whether to charge -- and, more particularly given this example, whether to charge -- a very thorough examination of the file would be made by prosecutors before deciding upon whom to name in the information.
Senator Jessiman: You said that you did not think the offence concerning participation was needed because the code probably covered enough of it already.
Mr. Healy: That is not quite what I said. I said that a question that has been raised in a conversation to which I have been a party is whether it is strictly necessary to have this additional offence, given that we have increased sentencing powers elsewhere in the bill and other measures. My answer is that, while there may be some overlap in some instances, it is still a good and justifiable decision in policy to introduce this new offence because it identifies specifically the kind of harm that is done by people who participate regularly in the activities of organized crime.
Senator Jessiman: Under this clause, if you commit certain crimes that only bring imprisonment for up to five years, you can now receive 14 years. You could not otherwise under the law. If you did not have this clause, are there other clauses that would provide the same type of sentence?
Mr. Healy: The increased powers of sentence would be one, if there was a conviction of the substantive offence. I gave the example of arson or use of an explosive. Let us stick with arson.
Subject to some procedural objections based on double jeopardy, proposed section 467.1 -- that is, clause 11 of the bill -- gives specific recognition to the harmfulness of the conduct of a participant in organized crime. That justifies the increased liability to a maximum of 14 years. It is not for someone who has simply committed an offence but for someone who has committed an offence while being part of an organization and has knowingly participated in the activities of that organization. To allow a maximum of 14 years for people who engage in that activity tells those people that, if they choose to involve themselves in organized criminal activity, they expose themselves not simply to conviction for arson and whatever arson will bring in the particular case, but to a conviction of participation in the criminal organization with a much increased penalty. Arson has a serious penalty, too, but this one is very serious.
Senator Jessiman: Would they have put something like this in the bill because of the courts themselves? When you have penalties of imprisonment up to a certain period of time, the courts, as a matter of practise, hardly ever impose that maximum period of time. Would that be another reason? Even though you have up to 14 years, the courts could still say, "We will give him two or three years," or whatever.
Mr. Healy: Yes. This legislation sends a message that there is a premium on that kind of activity.
Senator Jessiman: I thought that was the reason -- not that they will probably get 14 years, but it gives them that guideline.
Senator Lewis: Do you feel that the inclusion in the bill of the word "whereas" at the beginning of the paragraphs in the preamble is in any way helpful to setting out the principles and the reasons? It is not very often that we see bills with this type of thing.
Mr. Healy: This opens up a question that I would rather not answer, but I will if you wish.
It is increasingly common that bills are being introduced with preambles that explain some of the context from which the legislation emerges.
I do not mean to disagree with you, but perhaps I will. This is actually more common than not with important, recent initiatives in criminal legislation.
The most that I will say about the content of the preamble is that it provides assistance not only to parliamentarians but also -- eventually, when courts are asked to scrutinize the legislation -- to the courts in being able to identify the context from which the proposals emerged.
Senator Lewis: That is why I asked the question.
Senator Doyle: You have said three or four times since you began your testimony that the success of the law would depend to a very large degree on the way in which it was enforced by the police and upheld by the courts. You then said that their performance has not always been too good. What makes you think, suddenly now, that without our spending a lot of time on safeguards, they will find their own peace, the police and the courts? Certainly the police and the courts do not agree on safeguards. They are constantly at each other. Yet we must depend on that combination because we are too busy to spend any time with this law. I am not saying it is right or wrong, but what makes you as confident as you are?
Mr. Healy: There are two reasons. First, as a matter of law, this bill has been drafted in a way that tries to restrict the expansion of police powers and criminal liability in a restrained manner by tailoring it specifically to the activities of criminal organizations and those who participate in criminal organizations. There is a clear legislative attempt or intention to restrict the expansion of the criminal law to that specific context of organized criminal activity.
I would have thought, as a practical matter, that after screaming -- if I may say so; and I apologize for using such a provocative word to describe the activities of the police -- or after demanding for such a long time for increased recognition of the seriousness of organized crime in Canadian society, police officers would be foolish if they embark on the reckless use of this kind of legislation by asking for warrants in cases that do not deserve them. In this legislation, they finally have a measure that has been denied to them for a long time and recognition that increased powers are necessary. If they were to jeopardize what they have been asking for by the reckless use of the legislation, I would be profoundly surprised. That gives me some confidence.
Senator Doyle: You have spoken about the police, but what about the courts?
Mr. Healy: I would say the same thing, particularly regarding the wire tap provisions, which, as Mr. Borovoy said, raise considerable concerns, and the search provisions.
The courts, starting with the Supreme Court, have been quite vigilant about protection of reasonable expectations of privacy. I would have thought that any person involved in the administration of this legislation would err on the side of respect for privacy as much as possible rather than erring on the side of open-ended gathering of information precisely to preserve the validity of this legislation as a valuable tool against organized crime for as long as it can possibly be used.
The Chair: Thank you, Professor Healy.
Honourable senators, are you prepared to proceed to clause-by-clause study of this bill?
Hon. Senators: Agreed.
Senator Lewis: I move that we report the bill without amendment.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Carried.
I will report the bill this afternoon.
Senator Roberge: Would the committee entertain a recommendation?
The Chair: Certainly.
Senator Roberge: Recently, an institute was created for the study of organized crime and corruption. It was established by a patron who donated $3 million to Osgoode Hall. Would the federal government, through the Minister of Justice, consider giving funds to that centre to establish an in-depth study on organized crime in Canada, accommodating a public forum and inviting guests from abroad so that we could hear how they solve their problems?
The Chair: I would prefer that that be an observation to the report rather than a recommendation. If it is agreeable with the committee, I will make that an observation to the report.
Senator Milne: Can the Senate recommend spending money?
Senator Lewis: We cannot.
Senator Nolin: We recommended something similar to that last week on a different bill for a larger amount of money. I think we can recommend that.
The Chair: Yes, if I have your approval.
Senator Beaudoin: A money bill should originate in the House of Commons, but beyond that, we have full powers.
The Chair: The observation is that this centre has been established at Osgoode Hall for the study of organized crime and that we encourage the federal government to engage in consultations and support for that particular centre.
Is that a reasonable observation to add to our report?
Senator Roberge: We should go further in recommending an in-depth study in Canada on organized crime and eventually a forum where all participants could find out what is happening in the rest of the world so we can improve our legislation with respect to fighting organized crime.
Senator Beaudoin: If it is restricted to legislation, we may do that because it is federal criminal law. However, the provinces have the right to get involved in the organization as well. It must be general, but I agree entirely.
The Chair: We will make it of a very general nature. May I have the authority that this be approved by the steering committee before it is submitted to the chamber?
Hon. Senators: Agreed.
Senator Nolin: Senator Beaudoin, when you say that it must be general, I understand that Senator Roberge's recommendation is to the effect that we strongly recommend that the government support and assist this independent organization in its pursuits. That can be precise.
Senator Beaudoin: Does it exist?
Senator Nolin: Yes.
Senator Lewis: On a different matter, when will we receive more legislation?
The Chair: It is not my intention to call another meeting until the normal next meeting of this committee, which will be next Wednesday. Of course, we could not possibly sit next Wednesday if an election has been called. Next Wednesday, we will meet in Room 505 of the Victoria Building -- that is, unless some of you are gathered on the hustings.
The committee adjourned.