Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 58 - Evidence
OTTAWA, Wednesday, March 3, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act, met this day at 3:45 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators today we will hear from the representatives of the Department of Justice, Mr. Yvan Roy, Mr. Chris Ram, Mr. Hal Pruden, and Ms Jodie vanDieen.
Would you prefer to commence with a short statement, or shall we go directly to questions?
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section: Madam Chairman, we can proceed directly to questions. My colleagues have particular expertise in this area in the hope that we will be able to answer all your questions.
Senator Bryden: Did any of you sit in on our earlier hearings?
Mr. Roy: Senator, I was here with the minister when she appeared before this committee. Mr. Ram and Mr. Pruden were also here when other witnesses appeared before this committee.
Senator Bryden: Having sat through those proceedings, you would have heard the concerns that were raised. Can any of you clarify the concerns raised by other witnesses?
Mr. Roy: I was debriefed by my colleagues on a number of statements and arguments that were made to this committee having to do with gambling. If that is the area you wish me to address, I shall be pleased to do so.
With respect to gambling, the minister was clear when she appeared before this committee that these amendments are narrow and are meant to allow for two types of situations. The first area deals with dice. I am sure that you have heard comments to the effect that perhaps this area should be scrutinized more.
Let me state as clearly as I can that this amendment is for the purpose of allowing provinces, those who are licensed on the basis of section 207 of the Criminal Code to conduct that activity. Under this amendment, charitable institutions are not allowed to conduct that kind of activity. Therefore, it will be for the provinces to make a determination as to whether they wish to add this type of gaming to the mix that is already available. We understand that at least one jurisdiction is interested in doing this for the purpose of making sure that their operation will continue to be able to compete with other operations that are or will be operating on the other side of their border.
To be even clearer, there will be casinos in the state of Michigan, in particular in Detroit, that compete directly with Canadian operations. If the provision of this activity in the U.S. will cause operations being conducted by the province to be unable to compete with the Americans, it was felt by the government and the minister that these amendments would be appropriate. It is certainly not mandatory.
It is our view as a department that this new form of gambling, if operated in one of our Canadian casinos, will not generate more activities. Indeed, there is already a fair bit that can be done with the operations as they are right now. However, if we are to lose business because we cannot provide that, we should be giving Canadian operators the ability to compete on the same level.
As for the other amendment having to do with gambling that is presently before you, this one deals with gambling on international cruise ships. It is the belief of the minister and of the government that this is done for the purpose of allowing tourism to flourish on both coasts.
We believe that the benefits will be greater for the East Coast than for the West Coast.
You also heard from witnesses who favour the amendment. They told you that it is expected that a majority of those who will be making use of the amendment, in the order of 99 per cent, are foreigners coming to Canada for the purpose of spending money on Canadian soil once their journey will have brought them to port.
This should not add to the possibility of Canadians gambling, because Canadians are not the target population with respect to that particular amendment. You will have seen that the amendment is tailored so that only international cruise ships will be affected. The amendment does not permit riverboat gambling by foreign operators on Canadian soil.
What is targeted, senator, is people leaving, typically, from the eastern coast of the United States on a journey that would last from five to seven days, would come into Canadian waters, and go all the way up to possibly Quebec City and Montreal for the purposes of visiting Canadian territory. It is important for those operators of cruise ships to continue their gambling operation.
Canadians are not targeted by this amendment. I would hope, senator, that my statement is not ambiguous in any way, shape or form.
We understand that the opinions expressed to this committee will be the reality. We have consulted with these people. We have consulted with the operators of international cruise ships. We are confident that the amendment will not create more gambling involving Canadians in this country.
[Translation]
Senator Beaudoin: I have just read the brief from the Canadian Bar Association. They have not asked to appear; nevertheless, they have raised seven, eight or nine points, and I would like to have your reaction to those, in view of your expertise in the area. Are you impressed by some points, or are there others that are not quite relevant? What is your overall response to this letter from the CBA?
Mr. Roy: Unfortunately, I have not read the letter entirely. However, I could comment on the first points raised by the Canadian Bar Association, and come back to the others when I have had the occasion to have a quick look at them.
The change proposed to clause 2 of the bill is relatively minor. During the amendments, it was necessary to shift certain provisions, and this is all we're trying to do. In other words, there is nothing new in this provision, and the CBA's fear that some expressions are too vague is not new. They have raised this issue because the text has not been changed.
As for the vagueness, you know better than anyone else, Senator Beaudoin, that the Supreme Court has decided on a number of occasions what vagueness constitutes, in a general sense. Basically, the test is to know whether it is impossible, given the words used, to have a reasonable legal debate.
I suggest that the expressions here do not raise any constitutional difficulties with respect to the vagueness of the provisions. I would refer you to the Nova Scotia Pharmaceutical case, where the basic decision was made by Justice Gauthier, and it was subsequently applied in other cases, carrying through until the Canadian Pacific decision in 1997. The test remains the same. In my opinion, there is nothing to fear in this regard. Once again, the text before you is not new. It is old.
Senator Beaudoin: If they were to be right, it would be in current law?
Mr. Roy: That's right.
Senator Beaudoin: It is not in the bill before us?
Mr. Roy: No. As for clause 4, concerning electronic surveillance, I share the CBA's fear that invasive techniques such as that one be used for all kinds of purposes. However, I would suggest to this committee that the offences that would be added to clause 4 to allow electronic surveillance deal with the most pernicious manifestations of prostitution. Basically, all of the offences listed are related to prostitution, and the goal is not to target the prostitutes, but those who manage and finance them. To be specific, these provisions are aimed at the procurers. We believe that electronic surveillance is the way to catch them. Why? Because these people communicate electronically. At the present time, we do not have the means to intercept such communications in order to go after the procurers.
This recommendation came from the provinces who hope, when possible, to use this technique. It is limited by the resources available to governments -- because electronic surveillance is very costly -- and by the fact that applications must be made before justices, that is justices of the superior court in all the provinces and in Quebec, justices of the Court of Quebec. Such applications are not made to justices of the peace, but to justices who are fully trained to provide governments with conditional authorizations and, if necessary, they can refuse inappropriate applications. We share this concern. However, we believe that this is a small opening and that it is necessary to facilitate investigations in this area.
As for the installation mentioned in clause 5, it should be pointed out that it would be appropriate for the bill to mention covert or open installation. This is a drafting technique. When we discussed this with the drafters as the bill was being drafted, they told us clearly that they were saving words and that the more restrictive concept is usually stated. The less restrictive concept is included by definition, so it is not always necessary to express it. When the concept is broader, that suffices.
Senator Beaudoin: The greater includes the lesser.
Mr. Roy: That is it. The law professor is reminding me of the good old truisms. As for the definition of child prostitution, it is pointed out that it might be desirable to have a maximum sentence of less than five years, perhaps two years would suffice. The position of the government and the minister with respect to child prostitution is that this is a particularly serious offence that must be strictly and thoroughly punished. Many people would argue that five years is not enough, that we should have something much more severe and that equating this offence with soliciting, as is stated in clause 213 -- soliciting in the general sense of the term, when adults are involved -- seems to us insufficient. I repeat, some people might find that five years is far too little.
I think that five years is appropriate under the circumstances. We are trying to establish a correspondence between the prohibited conduct and the associated sanction. This provision prohibits communicating with anyone in order to obtain the sexual services of someone under 18. Procuring the sexual services of someone under 18 should be punished more severely than mere communication. Communication would be punished by five years rather than 10 years, 14 or even life. Furthermore, dropping it to two years seemed a little weak to us: that is why we propose to keep it at this level.
On fraud related to precious minerals, they say that the proposed reversal of the burden of proof is not appropriate. I would reply that this reversal is fully consistent with the Supreme Court of Canada decision in the Laba case. The provision in question was challenged because the previous disposition, which is being replaced by the one before us, provided that the reversal had taken place and that the accused was obliged to prove his innocence. The Supreme Court decided that such a presumption is unconstitutional. Moreover, the Court stated very clearly that a presumption that makes it possible not to demonstrate a fact but that merely creates a burden of presentation of proof and not a burden of persuasion, would be constitutional. In fact, in its decision the court formulated the proposal that is in the document at hand.
The change in the legislation complies completely with the Supreme Court decision. You are familiar with the read in technique, the Court having said in this decision:
[English]
If you read in those words, the provision will be constitutional.
[Translation]
The provision that we are providing for the words "read in" complies fully with the Supreme Court of Canada's requirements as set out in this case that dates from 1994-95.
I am somewhat confused about the comment on clause 22 on bail hearings, because they talk about reversing the burden in this clause, when, in fact, it is about something else, unless we're not talking about the same clause 22. But in the bill before us, this clause authorizes a justice to order someone to abstain from communicating with a named person while the bail hearing is pending.
What in fact is happening? A person is arrested and held in custody. The Crown has three days to present the person before a justice of the peace for a preliminary hearing. But within 24 hours, the Crown must have the person appear. So there is initially 24 hours and then, 72 hours. During the time between the initial appearance and the bail hearing there is no authority for a judge to order someone to not communicate with certain individuals.
We are thinking particularly of domestic violence cases where the victims may well not want the accused to comunicate with them. This provision would authorize a judge, at the time of the first appearance, to order that there be no communication; this covers a gap in the existing legislation.
[English]
Senator Beaudoin: Has Mr. Ram something to say?
Mr. Chris Ram, Counsel, Criminal Law Policy Section, Department of Justice: I am not sure whether the Canadian Bar Association letter is referring to clause 22 or clause 23. Mr. Roy has just explained clause 23. They refer to clause 22 amending subsection 515(6) of the Criminal Code.
The Chairman: Before you continue, I would point out that the numbering of this is wrong. This brief is identical to the one they sent to the House of Commons and since then the numbering has been changed.
Mr. Ram: I beg your pardon. My briefing book is out of date, so I am using the same numbering system as they did. Therefore, the two mistakes cancel each other.
They are speaking to what was previously clause 22 and which is now clause 21 of the bill. The amendment to section 516(6) simply removes a reference to subsection 5(4) of the Controlled Drugs and Substances Act from the section because it was inadvertently included before. The reference in the Criminal Code provision is to offences that can lead to a life sentence, and the offence in subsection 5(4) in the Controlled Drugs and Substances Act is a maximum five-year offence. Therefore, it was included incorrectly. The only change to 515(6) is to remove that incorrect cross-reference.
The thrust of the Canadian Bar Association submission may be concerns about section 516 that are not being amended by the bill.
Mr. Roy: Regardless of whether they are talking about clause 21 or clause 22, the concern does not arise. There is no provision in here that reverses the burden at bail hearings. I do not understand where they are coming from with this.
I was at this point in the letter, Senator Beaudoin, when you asked the question. I have not yet read the other provision.
Senator Beaudoin: Perhaps we should proceed to questions from other senators.
Senator Wilson: I have a few questions arising out of yesterday's hearings. With regard to gambling and dice games, it was pointed out that the provinces are in a serious conflict of interest because both the regulation of gambling and the interpretation of the exemptions in the Criminal Code rest with them. However, the provinces are becoming increasingly dependent on the revenues that accrue from the dice games. In recent months in both B.C. and Ontario, the provinces have overridden decisions of some democratically elected municipal councils in order to allow this expansion.
What are you views on that? Municipalities are fearful of what will happen to the community. Have they had any input into these amendments?
Mr. Roy: One of the proposed amendments should not concern the communities in any way, shape or form because the target population is not Canadians. That is the amendment concerning cruise ship gambling.
Senator Wilson: I am not addressing that one.
Mr. Roy: Therefore, we are talking about dice. With respect to dice, the purpose of the amendment is to allow, where appropriate -- and this is a decision to be made by the provinces -- their own operations to compete with operations that exist across the border.
The arrangement we currently have with the provinces with respect to gambling goes back to 1985. Indeed, the documents that support this arrangement are part of the records of this house. The discussions took place before this committee in 1985.
At the end of the day, it is for the provinces to decide whether they wish to use certain forms of gambling or not. I do not agree that there is a conflict of interest. The provinces, like any other government, have to be accountable to the population for what they are doing. Every time you make a policy choice of some sort, you must balance competing interests, which does not mean you yourself are in a conflict of interest position.
Provinces, whether it be Ontario, Quebec or British Columbia, if and when this amendment is passed, will have to determine whether this is appropriate for their community, taking into account what the people in the province think, including both those who are against gambling and those who say this is a way of generating some revenues for the provinces. In the case of some provinces that have their operations close to the border, one of the considerations for them will be whether they will lose business because people will cross the border in order to do this. This will be but one consideration that the provinces must take into account.
Someone mentioned conflict of interest. Every time you, as honourable senators, or we, as advisers to the government, must make a policy decision, there are always conflicts of interest, if we consider conflict of interest in its very broad sense -- that there is a interest to do something in one direction and an interest to do something in another direction. At the end of the day, the government will make the decision, and they are accountable to their electorate, for the decision they make. This amendment does not say that you must do it, but that you can do it if you think it is appropriate.
Senator Wilson: Citizens generally have looked at the federal government as a gatekeeper for the public good. Gambling was for the public good, and that is why these exemptions are apparently meant to be for the public good. I received interventions from the regions of Thunder Bay and Timmins which do not compete with any places in the states, and yet this policy will apply to them. You say the decision will be theirs. However, my question is: If this committee were to request a review of the social, economic and legal aspects of this on a community before we proceed, what would be your response? We have no idea what the impacts will be on isolated, vulnerable communities that may look upon this as a wonderful source of revenue without considering the social impacts. Have any such studies been done?
Mr. Roy: Perhaps Mr. Pruden, who is our expert on gambling, can tell you a little bit more about studies that have been done.
With respect to your question, more specifically, this amendment is certainly not intended by the minister to allow more gambling in this country.
Senator Wilson: That may not be the intention, but I am asking about the effect of it. Have we considered that?
Mr. Roy: We are not certain that casinos will expand for the purpose of adding this kind of an operation. Operators have a certain amount of space in their casino and they must make a decision as to whether they will put in slot machines, other forms of gambling, or some dice games. Once they do that, they must eliminate other forms of gambling or have fewer of them.
You may say that having dice games as part of the gambling mix in a particular place will increase gambling, but we are not convinced that is the case. That is certainly not the basis for the proposed amendment. Whether gambling is a good or a bad thing for Canada is certainly not for me to say.
Senator Wilson: What would you think about a public, federal review of the social economic impacts before we get into this?
Mr. Roy: May I ask you in return: Would the study you are talking about be about dice games alone?
Senator Wilson: Hopefully it will be broader than that, but this would precipitate the study.
Mr. Roy: If you are only talking about dice games, I do not believe the impact can be that great. It simply cannot, because there is just so much space that you have in order to be controlled by the province.
Senator Wilson: Your study needs to be broader.
Mr. Roy: If it is broader, then you are looking at the whole question of whether gambling is a good thing.
Senator Wilson: I am thinking of an isolated, northern community.
Mr. Roy: Before we do something like that, I would invite you to go back to the debate and the documents filed in this committee in 1985 when there was an agreement reached between Canada and the provinces in exchange for some large amounts of money. There was an agreement made that Canada would present legislation and make its best efforts to pass that legislation. This is the code that we have right now. If I am not mistaken, there is a clause in that agreement to the effect that all of the parties agree that they will not raise Crown immunity should there be a court challenge. In other words, this is a matter that may end up before the courts.
My sense, honourable senator, is that, unless we have good evidence that this is actually causing significant problems in this country, we are better to leave this agreement the way it is. Again, I insist on the fact that dice games are not, by our best assessment, estimation, evaluation, going to increase gambling in this country. This amendment is presented only for the purpose of putting Canada in a position to compete on an equal footing.
Perhaps Mr. Pruden could add to my answer, being the expert that he is.
Mr. Hal Pruden, Legal Counsel, Criminal Law Policy Section, Department of Justice: I know something about the law related to gambling but I am certainly no expert in relation to sociological or economic research, although I am aware of some of the research that has been done. I know that the Province of Nova Scotia is the only province in Canada which has legislation requiring an annual report on the state of gambling in that province. In that annual report, they touch on developments in other parts of Canada. They include, I understand, some sociological research on impacts as well as economic impacts.
Other provinces, while it is not in their legislation, are interested in doing research into the impacts of gambling in their communities and on specific populations within their communities. I believe Alberta was mentioned as a province which has looked specifically at the impact of gambling in their province on First Nations and aboriginal people.
In terms of a broad overview, one would have to recall that the provinces already are not only involved with the gambling operations that they conduct, and the licensing that they do for charitable or religious organizations that have gambling, but they also deliver the health services to people who may have developed a gambling problem. They are interested themselves in social and health issues and delivering services to those people who develop an addiction or a problem with gambling, so certainly they have a very strong interest in the area, and I believe that it would be important to include provinces if there is a study of gambling. I am sure they would be rather upset if they were left out of that kind of research when they are the ones heavily involved, not only in gambling operations and licensing, but also in health services.
Senator Wilson: In other words, the provinces are interested in picking up the pieces when someone is an addict. That says nothing to me about prevention of the problem.
Mr. Roy, you mentioned that there needs to be good evidence. My point is that we do not have a mechanism for eliciting good evidence at this point.
Senator Moore: I wish to ask you about clause 9 of the bill. In the first part, section 227 of the act is repealed.
Mr. Roy: Yes.
Senator Moore: Then clause 9(2) makes the repeal of section 227 applicable to cases that come within the year-and-a-day period when clause 9 comes into force, retrospectively, but not to cases where the limitation period has actually run out.
There would probably be violations of the Charter if clause 9 involved a retroactive application. There may be concerns that clause 9 will encounter some serious Charter challenge, should be it become law, because of its retrospective application.
Could you tell the committee why you believe that there is a solid argument to be made against a successful Charter challenge to this proposed provision?
Mr. Roy: Generally speaking, it would be understood in law that a provision applies prospectively only. That is to say, we are looking at the situation at the time of the commission of the offence. To make this more palatable, for example, if the proposed section 9 were to come into force on July 1, without paragraph 2, the application of section 227 would not be possible for offences committed after the coming into force of the section. As of July 2, 1999, the repeal of the section would only apply if someone were to cause an injury that would produce the death of someone more than a year later.
Given the state of science, it was suggested that it would be important and appropriate to push this date back as far as possible so that people who commit this kind of offence could be captured by the homicide provisions of the Criminal Code as much as possible. We have looked into this very carefully. If it is prospective only, there is no Charter problem. However, you increase your risk as you move the date backwards.
Returning to my example of July 1, 1999 and the coming into force of this bill, if the behaviour we are talking about that has produced the death were to have taken place, say, in 1997 -- that is, before the year-end date -- then our assessment is that the Charter risks are considerable. Why? Because the statute of limitation has run out and you have a vested right, given your situation. For example, you committed an offence in 1997; we are now on March 2, 1998. The statute of limitation has expired and you cannot be charged with murder. This is part of vested rights.
The situation described in clause 9(2) is more complicated. We are suggesting that the status of the person has not crystalized because the facts that give rise to the eventual offence took place within that year. That is to say, they do not have a right that has accrued to them. Why? Because before that right was vested in them, Parliament decided that it did not exist any more.
We believe that good Charter arguments can be made if the issue is raised by someone before a court of law. Why? Because they do not have that vested right. That is, that right has not accrued to them yet. Their status has not changed because of the operation of the law. However, in other cases where their status has changed because of the operation of the law and the right has accrued to them, then we think that there would be significant Charter problems. They would probably be so significant that it would be difficult for the government to present an argument in order for this to be maintained constitutionally. In those circumstances, our minister has clearly indicated that she does not wish to have a provision of this sort going forward. Therefore, we have drafted this amendment that we think pushes the envelope back as much as it can, given the current state of the law.
Senator Joyal: I wish to return to the issue raised by Senator Wilson. I am not sure that I totally understood the implication of her question. If I read the clause of the bill that deals with "dice game," my understanding is that it would be restricted only to casinos. As Senator Wilson mentions, a small town such as Timmins or Rimouski, or some other small town, could not apply at the lottery and game department for a permit to organize a municipal dice game to raise funds for whatever reason. As I understand the proposed legislation, it would be restricted to casinos where the province already operates other games, as you have described for us. It is not an open-ended kind of authorization for the province to authorize municipalities or volunteer organizations to raise money. I do not believe there are casinos in the towns mentioned by Senator Wilson. Are there provincial casinos there?
Senator Wilson: Yes, but the proposed legislation says "dice games." It is one line.
Senator Joyal: I understood that the bill restricted this to provincially run casinos. However, from the intervention of Senator Wilson, I could draw the conclusion that there is the possibility that provinces could grant the operation of dice games for whomever they feel it would be proper. I understood the bill differently. I felt that it was restricted to provincially run casinos. Am I right or wrong?
Mr. Roy: You are completely right. Actually, Mr. Pruden, our expert in the field, can give you a fuller explanation as to how this is to operate.
In short, the answer is, "yes." This type of game must be operated and managed by the provinces. It will not be possible to licence charitable organizations or religious organizations to run this kind of operation. As the legislation is drafted, it is simply not possible.
Mr. Pruden: Under section 207(4) of the Criminal Code, there are certain things that a province is permitted to do in its range of legal gambling activities that a province cannot license someone else to do. Included in this list would be slot machines, which we find in provincial government casinos and which some provinces choose to place at other locations. This amendment will place "dice games" in the same situation. In other words, the province can operate the dice games where it chooses to operate them, but it cannot license someone else to conduct and manage those dice games.
It is possible that the provincial government would make a decision -- in consultation with municipalities or however it chooses to come to a decision in balancing what it wants to do with gambling -- to locate a provincial government casino or a dice game in a licensed charity casino that has table games operated by the charity, but the province must do that. It must take into account the interests of its provincial residents and the public.
That brings us back to a question that was asked earlier about the impact on municipalities regarding this issue.
At the end of the day, it is important to remember that, legally, municipalities are a creation of provincial statute. There are cases in British Columbia where the province is at odds with some of its municipalities and it may be that the province will choose to use its powers to deal with municipalities to come to a conclusion that balances the interests of the whole province with those of one particular municipality. Alternatively, the municipality may sway the province in its opposition to a particular form of gambling within the municipality. That is a matter for provincial balancing.
Dice games will be very similar to slot machines. The province can operate them. The province cannot licence anyone else to operate them.
The Chairman: Some of our provinces are not noted for listening to the desires of their municipalities.
Mr. Ram: If we look at the amendment and the provision of the Criminal Code into which it is being inserted, we will see that it actually moves dice games from paragraph 207(4)(a), which are games that are prohibited under all circumstances, to paragraph 207(4)(c), which are games that the provinces can conduct and manage but not license to others. The operative words are "conduct and manage." The province must exercise a high degree of control over the game.
Senator Joyal: I thank you for that answer. I originally thought that it was the application of the principle that, once you have received the authorization to do it, you cannot authorize anyone else in lieu of you.
I am concerned that it be clearly established that, considering the implications of regulating and monitoring dice games, a province could not authorize a municipality, in an area where there are no casinos, to licence the operation of games using the rationale that they do not compete with the casinos in the large cities, as they grant licences for charity lotteries and that sort of thing. To me, those are two different things. I want it to be clearly established that a province cannot license anyone else to conduct dice games, just as they cannot license slot machines or other games that already have authorization. We would be totally changing "the economy" of the authorization given if we are opening the door to what Senator Wilson has said, that at a point in time it will become a new way to raise money for municipalities without competing with provincial casinos.
Mr. Roy: If that were to be the case, that would clearly be problematic. However, dice games are to fall into the same category as slot machines, and these must be operated by the province. You cannot license someone to do this on your behalf. That is what the law provides, and that is what this amendment would be doing. You are not licensing someone to do this; you are operating this yourself.
Senator Bryden: Would you reread the part of the section that you read before? I did not bring my code with me.
Mr. Ram: The amendment takes the words "dice games" out of paragraph 207(4)(a) and inserts them into paragraph 207(4)(c). I believe section 206 deals with the offences.
Senator Bryden: That list specifies what the province may do. One of those items relates to slot machines.
Mr. Roy: This removes this from the list of games that are completely prohibited.
Senator Bryden: I understand that. Read the words in the section where that appears now. What does that allow the province to do?
Senator Joyal: Reread the section of the Criminal Code where "dice games" is found.
Mr. Ram: Section 207(4) says:
In this section, "lottery scheme" means...
That plugs it into the exemption of section 206. It says:
..."lottery scheme" means --
It list certain things and then it says:
...other than
(a) dice game, three-card monte, punch board or coin table;
That takes those four things out of the exemption and includes them in the offence.
Section 207(4)(c), the provision into which dice is now being inserted, states:
for the purposes of paragraphs (1)(b) to (f), a game or proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g) that is operated...within the meaning of subsection 198(3).
It refers to an operation described in any one of the paragraphs of 206(1)(a) to (g), which is a list of things that the provinces are allowed to conduct and manage.
Senator Bryden: "Conduct and manage" are the words I am getting at.
Senator Joyal: Where does it say clearly in the Criminal Code that the provinces have the sole authority to exploit that kind of game and cannot license anyone else to do it in their stead?
Mr. Roy: No one around the table can be faulted for not understanding this part of the Criminal Code, because it is incomprehensible.
Clause 6 adds, at the end of subsection 207(4) paragraph (c), "or a dice game."
Mr. Pruden will give the technical answer to your question.
Mr. Pruden: Subsection 207(4) defines "lottery scheme" for the purposes of section 207, which deals with exceptions to the offences found in section 206. Section 207(4)(c) says "for the purposes of paragraphs 1(b) to (f)." It is very important to note that paragraph (a) is not included there. Paragraph (a) deals with the exception for a provincial government to operate lottery schemes.
Subsection 207(4) talks about what a lottery scheme means "other than." Then in (c) we find the "other than" things that are found in section 207(1)(b) to (f), which are the things that a province can license. The things found here cannot be licensed to other people by a province. Under (b), a province can license a charitable or religious organization. Under (c), it can license a fair or exhibition. Under (d), it can license a private person, in narrow circumstances.
Section 207(4)(c) is telling us that computer video devices, slot machines and, with this amendment, dice, are things that a province cannot license to these other people found in section 207(1)(b), (c) and (d).
Senator Bryden: I accept that. May I just take this one step further? The section allows the province to conduct and manage, and I accept that they cannot license casino X to do that. We just determined that a municipality is a creature of provincial legislation. If a municipal government conducted and managed a craps game, would they be in violation of the Criminal Code?
Mr. Pruden: I should answer that by saying I see no permission in the Criminal Code for a municipality to conduct and manage a craps game. The prosecution, of course, would be a matter for the Attorney General of each province.
Senator Bryden: Let me have one more chance at this. The province is not licensing an outside entity. It is delegating its power to conduct and manage a lottery, to its own creature, which is a municipal government. I see nothing here that would prevent them from doing it. This is not a subdelegation. It would be a direct delegation of what they have a right to do. It is not a licence.
Senator Joyal: That is the difference.
Mr. Roy: Am I right in saying that what you are actually asking is whether a municipality can be said to conduct and manage on behalf of the province, without the province having done anything for that purpose?
Senator Bryden: Either that or the province simply having delegated its authority, under the Criminal Code or the act, to do it. It is not a licence. It is a delegation to a creature that the province created by statute.
The Chairman: Or perhaps to a creature that it did not create, such as a Nevada gambling company.
Senator Bryden: No. They cannot license that. I accept that. My concern is whether the province could go the other route, even if it does not make any sense. In a place like Timmins, the Province of Ontario could say, "Okay. We have the right to conduct and manage lottery schemes. We are prohibited from licensing anyone else to do it, but can we not delegate our right to have craps games to the City of Timmins just as we delegate many other things, such as our responsibility to provide social assistance?"
Mr. Pruden: If I may try to answer the question in perhaps an indirect way, when we look at section 207(1)(b), it tells us that a province can license a charitable or religious organization to conduct a lottery scheme and that the province may specify a licensing body, through the Lieutenant Governor in Council, to conduct and manage a lottery scheme. There, the Criminal Code has contemplated a very direct kind of involvement of bodies that will not necessarily be the province. In some provinces they do go to municipalities and ask them to license charitable gambling up to a certain dollar limit on the prize boards. I see nothing that parallels that in section 207(1)(a), and that is why I say I do not see any permission in the Criminal Code for a municipality to conduct and manage a gambling activity that a province does. That is the technical answer as I see it.
I also see a practical answer. We do not observe that provinces are anxious to allow slot machines -- and dice games would be in the same category -- to be operated by a municipality. It is not something that provinces have done.
Senator Beaudoin: Under the criminal law, I cannot see how a province may delegate a power to a municipality. Only an amendment to the Criminal Code itself could enable a province to do that. However, the province has no power in criminal law, so if a province wants to delegate a power to a municipality that touches on the area of criminal law, it must be found in the Criminal Code. If it is stated in the Criminal Code that a province may do this itself or may delegate that power, of course they may do that.
Mr. Roy: Quite candidly, what Mr. Pruden is putting forward appears to me to be extremely persuasive. When it is to be permitted to be so, the code speaks in those terms and specifies that the Lieutenant Governor in Council can do it. Here we are talking about a government of a province, and the words are, "...either alone or in conjunction with the government of another province..." There is no indication that someone else within the province can do it. On the contrary, it is the government of the province, and if they want to do that with another government, it must be that of another province.
When the code indicates it can be done by someone else, it specifies that the Lieutenant Governor in Council can give the jurisdiction to someone else in another section. We have always taken subsection 1(a) to mean that it is to be operated, conducted, and managed by the province and no one else. It was based on language which I thought was rather clear. I am thankful for Mr. Pruden's intervention because I believe it makes the case strongly. However, it is not for me to decide; it is for you.
Senator Bryden: Senator Beaudoin, if it were not for the Criminal Code, gambling would be a matter of provincial jurisdiction.
Senator Beaudoin: No. I cannot agree with that.
Senator Bryden: It is the operating of a business.
Senator Beaudoin: That is provincial.
Senator Bryden: It is a matter of property and civil rights. An activity normally is a matter of property and civil rights within the province unless the Criminal Code prohibits that.
Senator Grafstein: Or unless it is a specific power under section 91.
Senator Bryden: Yes. Where I think there is a problem with saying this is a matter of the Criminal Code, is that it is removing the Criminal Code's interference with the provinces' constitutional rights in the matter of property and civil rights.
Senator Beaudoin: They may do that.
Senator Bryden: I am not arguing that. The Criminal Code is out. That provision has been removed. We are now back to a situation of property and civil rights, which is entirely within the jurisdiction of the province. Therefore it can do whatever it wants in the area of property and civil rights, and one thing it could do is delegate its right to operate this business to a charity.
Senator Beaudoin: In civil law only.
Senator Bryden: No, in common law as well.
Senator Joyal: Senator Wilson mentioned a locality that is not in the centre of a major town, but what about the territories? The new Nunavut territory will come into force on April 1. Could they decide in Iqaluit that they can establish a casino and run dice games, slot machines, and so on?
Mr. Pruden: There is an existing summertime casino in Dawson City, in the Yukon territory. Under the Interpretation Act, the word "province" in legislation -- and, we have the word "province" in the Criminal Code -- includes a territory. The Yukon territory has a licensed charitable casino in the summertime and the territorial government chooses to locate territorially conducted and managed slot machines in the same location as the table games which it licences for a charity. Therefore, a territory as well as a province may conduct and manage dice games under this amendment, or slot machines under the existing provisions of the Criminal Code.
Senator Joyal: Theoretically, the new Nunavut government will have the constitutional authority to conduct and manage a casino in Iqaluit that would have dice machines, slot machines, and so on.
Mr. Roy: I would not say "the constitutional authority." It is, rather, the authority by the Criminal Code granted to the provinces, including the territories. They have the same basis for the authority as any province, but it must be conducted and managed by them if they are to run dice games. They are no different from a province in that respect.
Senator Wilson: I did not intend to say that municipalities would like jurisdiction so that they can manage and control casinos and receive revenues. The people in certain municipalities are afraid of the social impact. That is why I raised the question concerning studies on the social impacts. I am quite aware that the municipalities are creatures of the province. I learned that on a panel on which I sat.
Senator Joyal: I understand the point made by Senator Wilson, but there has been a lot of discussion among aboriginal people about getting the authority from provincial governments to establish casinos. Ontario and Quebec have been at the core of the discussion on that.
Taking into account here the fact that we are discussing provinces, and taking into account our discussion over Nunavut recently at this committee, I wish to find out what the socio-economic and cultural impact of a casino in Iqaluit would be. The impact there would not be exactly the same as the impact of a casino in Toronto, Montreal, Fredericton, or wherever.
Senator Beaudoin: The territories have only delegated powers. How can they delegate their own powers unless we, in an amendment to the Constitution Act, give the power to a territory to delegate? If we do not give them power they cannot delegated because they are already delegated powers.
Senator Joyal: I am saying that they will exercise it by themselves. The new Nunavut government could decide to establish casinos in Iqaluit with the same games that the provinces will be able to establish.
Mr. Roy: As the Yukon can, the Northwest Territories can. They are no different. They are exactly equal.
Senator Pearson: My question follows on the question of aboriginal rights. Would this amendment enable the casino at Rama, for example, to introduce dice games? It is a provincial casino.
Mr. Pruden: Yes. The casinos at Rama, in Ontario, and the casinos that we find in four locations in Saskatchewan -- which involve participation by the Federation of Saskatchewan Indian Nations and others -- are provincial government casinos. As they now operate slot machines, they could also add dice games. However, that would be a practical kind of business decision that they would make as to whether they wish to offer dice games. In their marketplace, they may find that no one knows the game or wants to learn the game.
Senator Pearson: That is correct. This is on reserve lands.
Senator Grafstein: What about the constitutional question?
Mr. Pruden: I do not know about the constitutional questions but the Criminal Code authorizes gambling there.
Senator Andreychuk: The aboriginals in Saskatchewan started casinos because they had the right to do so. There was a stand-off, and then there was an agreement between the two parties which does not prejudice aboriginals maintaining that they have a right to run casinos.
Senator Pearson: It is an unresolved issue.
Senator Andreychuk: It is resolved today, but it could become an issue to be addressed tomorrow.
Mr. Roy: The issue of aboriginal gaming and whether they have the constitutional right to have their own operation has gone to the Supreme Court of Canada. However, I am not sure that we want to go into a full explanation of that. The case Senator Pearson is talking about and the case you are talking about in Saskatchewan are on the basis of arrangements where the province is managing and conducting those operations. The argument by some nations is that they do not need to deal with the provinces. They believe that they can go ahead on the basis of their constitutional rights under section 35 of the Charter of Rights and Freedoms. This is a completely different issue. This amendment does not even take you close to that.
Senator Pearson: I understand that but you said that the issue was dealt with by the Supreme Court twice.
Mr. Roy: Yes. The court dodged the issue and then, approximately two years ago, it proceeded in a case.
Senator Pearson: What did it decide?
Mr. Roy: You really do not want to know.
Mr. Pruden: The Supreme Court had two cases before it. The second time it was looking at an aboriginal gambling case. Essentially, the court said that the question of aboriginal rights would depend on a fact-specific situation and that there must be sufficient evidence showing the aboriginal right. In the case before it, the court decided that it did not have sufficient evidence to say that there was an aboriginal right that translates, in modern expression, to be a large-scale commercial casino or commercial bingo operation. If another First Nation wished to take a similar question to the Supreme Court of Canada they could do that, knowing that they would have to bring a very persuasive level of evidence to the courts.
Senator Grafstein: I read the proposed subsection 207.1. How does the federal government have jurisdiction over this, period? It is international. Paragraph (c) refers to a five-mile nautical radius, but what jurisdiction does Canadian have beyond that limit?
Mr. Ram: Do you mean for the substance of the deployment?
Senator Grafstein: Yes.
Mr. Ram: First of all, the Government of Canada has jurisdiction within Canadian territorial waters which is the 12-mile limit under section 4 of the Oceans Act. Canada also has jurisdiction, although the specific provision escapes me, over Canadian-registered ships anywhere in the world. The Criminal Code, by section 6, I believe, applies to both of those circumstances. The gambling offences already apply.
Senator Grafstein: This goes to the question of overall jurisdiction and whether or not we have jurisdiction to include this in the code, period. It is a substantive issue.
Clause 7 of Bill C-51 sets out a proposed section 207.1 which states in part:
(d) the ship is registered...
(ii) anywhere...and its voyage includes some scheduled voyaging within Canada...
Is that how we grasp jurisdiction? If it is beyond Canada, I am not sure we have jurisdiction. If it is a ship registered anywhere outside Canada, how does the Criminal Code apply?
Mr. Roy: It applies only when that ship gets into Canadian waters. At that point, our territorial jurisdiction applies. We are trying to create an exception for those kinds of ships to continue their gambling operations on board, but while in Canadian waters. Otherwise, we do not have jurisdiction. If they are in international waters, we are not claiming to have jurisdiction over those ships; not at all.
Mr. Ram: Essentially, it says that, when those conditions are met, no offence is committed. If it is not a Canadian ship and it is outside Canadian waters, no offence is committed because the offence provision, which is not in the bill obviously, does not apply.
Senator Grafstein: I am having trouble with the drafting of the proposed section 207.1(1)(d)(ii)(A) which states:
(d) the ship is registered...
(ii) anywhere...and the voyage
(A) is of at least forty-eight hours duration and includes some voyaging in international waters and at least one non-Canadian port of call including the port at which the voyage begins or ends...
Mr. Ram: That is a triggering condition for the exemption. If the ship is on a voyage that meets those conditions, then the part of that voyage to which the offences would normally apply is exempt. That is essentially what the provision says. That does not attempt to extend the exemption beyond Canadian geographical jurisdiction. It just states that, if the ships is on a voyage that includes all of these things, then the part of that voyage which is within Canadian jurisdiction is within the grasp of the Criminal Code. On the other parts of the voyage, the offences are not committed. You must read it with the offence provisions themselves because this is an exemption.
Senator Grafstein: I will read the transcript because it is still not clear to me and I do not want to belabour this.
Senator Beaudoin: We have gone through the brief of the Canadian Bar Association up to pages 3, 4 and 5. I am quite satisfied with all the answers that you have given on that brief, however, perhaps you can respond to the remaining points. I have the French text. Is there an English text also?
The Chairman: Yes.
Senator Beaudoin: The remaining issues are transfer, fines, licenses, conditional sentences and clause 53 on telemarketing fraud. The Canadian Bar Association will not appear before us but they sent us an interesting memorandum. Have you had an opportunity to consider those remaining points?
Mr. Ram: I will deal with the last issue, telemarketing fraud, which is dealt with in clause 52 of the bill. It was previously clause 53. As I read the concerns raised by the Canadian Bar Association, they are concerned with the deceptive telemarketing offence itself which is contained in Bill C-20. Has this committee seen that bill already?
The Chairman: I believe that bill was referred to the Senate Banking Committee.
Mr. Ram: I can take up these concerns with the officials at the Competition Bureau at Industry Canada who are responsible for that bill. The provision in this particular piece of legislation, Bill C-51, simply links those new offences of deceptive telemarketing into the Criminal Code proceeds of crime scheme.
Deceptive telemarketing is becoming a major problem. The pattern tends to be a number of small offences but a large number of victims, thereby generating a large volume of proceeds. The purpose of this clause is to allow the provincial attorneys general to target those proceeds, even though the offences are small. That is what this amendment does. I will relay these concerns to the people responsible for Bill C-20. You might wish to refer them to the appropriate committee here.
The Chairman: Mr. Ram, are you telling us that we are at this point putting this into the Criminal Code even though the Competition Act amendment, Bill C-20, which will be setting up the offence, has not yet been enacted?
Mr. Ram: I should clarify that. The amendment is conditional. It is conditional on the coming into force of that clause.
Senator Beaudoin: Must we be concerned at this stage with clause 52, or will it be taken care of later on?
Mr. Ram: In my humble opinion, you need not be concerned if it is before another committee because the substantive concerns raised by the CBA have to do with the offences, not the proceeds. They deal with Bill C-20. I do not have the text of that bill before me.
Senator Beaudoin: If it is not our concern, we just forget about it.
The Chairman: It says here, Senator Beaudoin, that the Canadian Bar Association has prepared a comprehensive submission on Bill C-20 for presentation to the Banking Committee.
Mr. Roy: The concern is with Bill C-20; it is not with Bill C-51, as I read it.
Senator Beaudoin: What about the remaining questions?
Ms Jodie vanDieen, Counsel, Criminal law Policy Section, Department of Justice: On the issue of clause 33, transfer of probation orders, the only substantive amendment was to add the consent of the Attorney General of Canada if the Attorney General of Canada was the relevant prosecutor of the case.
In any event, the jurisdiction that prosecuted the offender has the greatest interest in knowing where the offender's probation order will be completed, and in supervising the offender. If the offender were to leave, let us say, Alberta and go to B.C., the Alberta probation officer would ensure that there are circumstances available for supervision in British Columbia. It is dealt with as an administrative matter.
Again, the only change to this provision was to add the consent of the Attorney General of Canada in any relevant cases.
With regard to the next issue, fines, clause 34, the only amendment to subsection 734(7) of the Criminal Code was a consequential cross-reference change which came about as a result of changes to subsection 734(5) where we restructured a formula for imprisonment and default and made it easier to read and easier for judges to apply. That resulted in the deletion of one of the sub-paragraphs. That is the only change to subsection 734(7).
This subsection allows provincial governments to make regulations about the costs and charges of conveying an offender to a correctional institution, and this arises in cases where they have not paid their fines. Of course, those costs and charges would be specific to each jurisdiction, based on costs of their personnel in the correctional facilities, et cetera.
With respect to clause 35, licences, the amendment we will add a power to suspend a licence, in addition to existing powers in the code to not renew or not issue a licence, permit or other instrument until a fine owing to the relevant government, either provincial or federal, has been paid.
This power, it should be noted, is only one of an array of means for governments to get the fines owing to them. Other methods available are civil enforcement of fines, a community service option where one can pay off a fine by doing community service work, and finally a process where an offender can be imprisoned for non-payment of a fine.
Senator Beaudoin: What about the preoccupation of the bar? Do you agree or disagree?
Senator Di Nino: If a driver's licence were to be suspended or not renewed or not issued, the relevant provincial statutes -- for example, the Ontario Highway Traffic Act -- set out criteria regarding when that may occur. They are quite limited and narrow. They address these types of concerns on a jurisdictional basis.
Mr. Ram: The English text of the letter states:
An exemption from the rigors of this provision may be advisable.
The wording of the provision is to the effect that the person responsible for issuing the licence may refuse to issue or may suspend. The discretion is there with the licensing authority to not take away someone's licence where their livelihood depends on it.
Ms vanDieen: I would agree with my colleague on that point. In addition, when a court imposes a fine, it assesses an offender's ability to pay the fine. A court should not be imposing a fine that is so onerous that an individual's livelihood is threatened.
Senator Beaudoin: You are satisfied with the status quo.
There is only one outstanding issue, and that is the comments in the letter relating to conditional sentences, clauses 42 and 43.
Ms vanDieen: These comments deal with conditional sentences. The first reference is to the 30-day time frame.
With regard to this issue, the existing requirements of the code are such that a breach hearing must be held within 30 days of the offender's arrest. This has been interpreted in the case referred to by the CBA, amongst other cases, as meaning heard and resolved, or determined. This time frame has proven problematic in terms of remote locations and having a breach hearing concluded.
We have changed the provision to state that the breach hearing must be commenced, rather than heard, within 30 days, or as soon thereafter as practicable. We have kept the 30-day time frame to encourage jurisdictions and the courts to deal with these matters in an expeditious fashion because some conditional sentences may not be of great duration. The maximum term of a conditional sentence is two years less a day. If an offender has a six-month conditional sentence, there is some urgency in getting on with the breach hearing.
Senator Beaudoin: At the bottom of the page, the bar recommends changing clauses 42 and 43 and to abrogate the time frame of 30 days.
Ms vanDieen: Yes, but we no longer have a time limit of 30 days. It is 30 days or as soon thereafter as practicable, so there is a measure of flexibility. We are dealing specifically with the case law that has presented the problem of courts no longer having jurisdiction because the 30 days has run out.
The Chairman: You are, in effect, saying that this bill answers the Canadian Bar Association's concerns.
Senator Beaudoin: It does?
Ms vanDieen: It does.
Senator Bryden: Mr. Roy, you made a very interesting comment in relation to when the deal was done between the federal government and the provinces with respect to gambling. It is an agreement. You indicated that the parties agreed to waive Crown immunity. Is that correct?
Mr. Roy: That is what I indicated, senator. I have with me some documents. For the record, senator, I will simply refer you to clause 7 of the agreement signed on June 3, 1985.
Senator Bryden: If Crown immunity is waived, does that remove immunity from prosecution and immunity from civil proceedings?
Mr. Roy: The best way of answering this is to refer you to the words themselves. This was done in the narrow context. The agreement reads that the parties acknowledge that the subject matter of this agreement is a commercial matter. They undertake not to invoke any Crown prerogative or immunity in any dispute, including any court proceedings arising from this agreement.
Senator Bryden: I wish Senator Wilson were still here because she is not without recourse, I would take it, regarding her concerns about social addiction and economic deprivation. The fact is that there are class actions in the U.S. and Canada where people like me who sin are in a position to sue tobacco companies for having destroyed our health. It has happened. Huge settlements are being handed down. The Government of British Columbia is suing the tobacco industry to recover the costs of health care. Presumably the allegations are correct.
We all know of situations where irreparable financial damage has been done to families as a result of using slot machines that are operated and managed by a province. That is actionable in a civil court. If the province has waived any Crown immunity, a person should be able to sue for damages.
Mr. Roy: I would not pretend to be what I am not. Crown immunity is not one of my areas of expertise. As I read this, what is being waived is with respect to the parties to this particular agreement. Therefore, you have an agreement between the provinces and the federal government to the effect that the federal government will present legislation and make its best effort to have the legislation passed so that the provinces will have jurisdiction over gambling. There was some financial consideration in return. The parties are saying, "If we have a problem on the basis of this agreement and we have to go to court with this, we will not raise, against each other, the Crown immunity we would have otherwise."
I am not sure that we are going anywhere beyond this kind of arrangement. To suggest that class actions can be taken against the Crown, or that the Crown would not raise Crown immunity on this basis, is perhaps a bit unclear. That is as far as I will go.
Senator Bryden: I will not pursue it any further, however, if I were a litigator I would.
Senator Moore: On the subject of provinces being able to conduct and manage gambling casinos, I believe, Mr. Roy, you said that, with respect to dice games, this proposed section permits only provinces to run dice games and they cannot license others to do so.
We have a casino in Halifax, Nova Scotia, which is operated by a company from Nevada. I am thinking about your comment about making border Canadian casinos more competitive. Who runs the casino in Windsor? Is that a provincial operation or is it also run by a Nevada company? Do we know the answer to that?
Mr. Roy: I have been to the casino in Halifax and I know that they have slot machines. You have been there.
Senator Moore: I have looked down the hole in the stairway and I have seen it, but I have not crossed that threshold.
Mr. Roy: In order to operate legally it must fall within the words "...to conduct and manage..." by the government of the province. I do not have any case law to rely upon to interpret what those words mean.
Senator Moore: This whole matter hinges on that interpretation.
Mr. Roy: I know that in some jurisdictions, Quebec in particular, casinos are operated directly by the province. They do not go through the management of some organization that they would be supervising. However, in Halifax, my understanding is that this is how they do their business. As for Ontario I would not be able to answer.
Mr. Pruden: My understanding is that within the Province of Ontario, with their provincial government casinos at Windsor, Rama, Niagara Falls, they do involve, in the consultation area, companies that have gambling expertise -- larger companies that have operated in the United States, for example. The provincial government takes the view that the province is still conducting and managing the lottery schemes that take place at the provincial government casino, and that they are assisted by the company that provides them with day-to-day operational assistance or with the consultative assistance on how to run casinos.
Senator Moore: Gambling consultants help them in the management of their facilities. That is what I thought.
Mr. Pruden: Quebec follows the Manitoba model, or vice versa, depending on how you look at it. The Province of Saskatchewan has sought out expert advice from casino companies in regard to their Regina casinos and for First Nations' casinos.
Senator Moore: I felt so much better when I did not pursue this because I did not question Mr. Roy's comments. However, it appears that this "conduct and manage" phrase does permit the provinces to license people, in effect.
Mr. Roy: With all due respect, I must disagree with that interpretation. Because you are buying expertise from outside does not mean that you are not managing and conducting the operation. You are the one who is responsible for this, no one else. Whether you hire someone and you give them a salary, or you hire a company to bring in that expertise and then you manage that, it seems to me it is still within the confines of the legislation.
If they were simply licensing someone and saying, "It is your operation and you are responsible for what is taking place here," I would agree with you, however, I do not believe that is what is happening.
Senator Moore: They probably will not do that because it is so lucrative. The provinces will keep it to themselves.
Mr. Roy: Yes.
Senator Moore: However, they must work within the confines of the code.
Senator Grafstein: Would you turn to the wiretapping provisions, specifically, clauses 4 and 5, on page 2, which deals with the permission to surreptitiously enter into a premises and to remove a covert device, right?
Mr. Roy: Yes, that is correct.
Senator Grafstein: I have read section 186, and that section has a very thorough and complex series of steps that are required in order to obtain the authorization and to continue the authorization.
What we are talking about here, and it is an issue of general public policy as well as privacy, is where the authorities are able to surreptitiously go into a private citizen's home on an ex parte affidavit and to remove a covertly installed listening device, right?
Mr. Roy: Yes, that is correct.
Senator Grafstein: Up until that time there was no authority, I take it. I looked at the section and I could not find that.
Mr. Ram: The situation now is that the statute says if you explain the situation to a court and satisfy a court that you should be allowed to conduct electronic surveillance, then you can go and conduct electronic surveillance. The case law now says that, if you have the permission to do the surveillance, you also have the permission -- it is implicit in the authorization -- to install the devices. The police community is operating on the basis that they also have the implicit authority to remove them again. To my knowledge, it has not come up in the case law.
They sought some clarification of this for a couple of reasons. The major concern was that you could take the position that the authorization allows installation, use under what terms and conditions the court specifies, and then removal of the device. What happens if they do a surveillance for six months and then the authorization runs out, the device is still in place, they do not have time or they do not want to risk going back to get it because the investigation is still ongoing? Perhaps it is another six months before they wrap up the investigation and make arrests, or however it concludes. The authorization has expired. This allows them to go back later and remove the device.
Senator Grafstein: We are dealing with two principles. The first is the installation mechanism. The second is that when the authorization term is completed, it sits there and they are not legally obliged to remove it.
The requirement of police power is lacking. There could be a number of variations, but I will take the clear one. They have reasonable and probable grounds. In the affidavit they have to indicate quite strict, and seemingly carefully crafted, pre-conditions to enter and install the device surreptitiously.
Mr. Ram: They also must inform the court of the nature of the premises involved, et cetera.
Senator Grafstein: Yes. I am suggesting that the entry point is pretty well protected. From a privacy standpoint, there are reasonable and probable grounds.
A period of time goes by, the term ends, and they cannot satisfy a court that the information is relevant for any criminal offence. They then have two choices, one being to forget about it, to leave it there and fire it up six months later, perhaps.
Mr. Ram: If they get another authorization.
Senator Grafstein: Yes. Or, alternatively, they may re-enter the premises, whether public or private, by surreptitious means and remove it.
I want to deal with the latter one, not the intermediate one, because there is a gap that I did not consider when I looked at this section.
On the removal issue, we are now authorizing the police to surreptitiously re-enter a citizen's house. The police have said that they either do not need the evidence or they have not been able to collect sufficient evidence to convince the court to allow them to continue. Yet, they will have the power, under the test here, to take the device out. It seems to me that this is an extraordinary police power. Maintaining the device there obviously creates a hiatus, and we should attend to that, because the police are not obliged to remove it.
Therefore, there are two issues. The first is an obligation on the police to remove. The second is that if there is a requirement to remove it, that they do it surreptitiously again.
Mr. Ram: I will deal with your last point first. We touched on this partially earlier.
Senator Grafstein: This goes back to the discussion we had with the privacy commissioner. I believe that this is a sensitive issue.
The Chairman: We did not raise this before, Senator Grafstein. There is a further issue which is that, at present, a wiretap can be left in place forever.
Mr. Ram: As to the question of covert removal, when we drafted the legislation, we created a statutory power to allow covert removal because, in some cases, that clearly will be necessary. The police will want to protect the nature of their surveillance, the nature of the devices, which can be very sensitive. The premises may still be inhabited by a target. They may still be investigating and, therefore, do not want to tip the target to the fact that there is an investigation going on. It may have to be covert.
There are three possibilities that are covered by this, and that is the reason for allowing the court to impose whatever terms and conditions it finds necessary. First, the court can authorize the police to go in without any notice and without making the occupant aware, thus carrying out a completely covert removal, for the reasons I have just given. Second, the court can authorize the police to go in with notice but no consent. In other words, they can show up at the door with a court order that allows them to enter and get their device. They must tell the occupant that they are doing it, but the occupant cannot stop them from entering and removing the device. Third, the court could conceivably say that it could be done only with the consent of the occupant.
The concern is that there is considerable investment in these devices. The dollar cost ranges from $20 to $20,000. Also, the technology is very sensitive. The RCMP, in particular, have expended large sums of money to create it and if someone finds out how it works, they will lose their investment. That is in response to the question of surreptitious removal after the authorization has expired, to create a new power to get an authorization.
The principal reason for not providing the same terms and conditions as those applied to the initial authorization to conduct surveillance is that a court had to be satisfied of that in the first place, otherwise the device would not be there. The police had to satisfy the court of the grounds of the investigation once the device is in place and we have to retrieve it, and the grounds to investigate that existed at the time the surveillance was originally authorized.
In terms of invasion of privacy, with regard to your next point, is it a greater invasion of privacy to have the police retrieve the device as soon as reasonably practicable in the context of their investigation, or to simply leave it there? We must also bear in mind that the premises may be occupied by someone unconnected to the investigation.
Rather than dealing with all of these permutations in the drafting, this provision recognizes that the police had all of that material on the record when they received the authorization to install the device. It then allows the court the discretion to attach such terms and conditions as it thinks appropriate, with regard to whatever the circumstances are at the time of removal, which may not have been known in the first place.
The fact that there is no obligation in the legislation to remove devices is a new issue. It is not something that we contemplated in drafting this legislation. Again, I am not an expert in all electronic surveillance law, or the technology of it, but one of the police's concerns is that there are many circumstances in which a positive obligation on them to retrieve the devices at a certain time, whatever that might be, would endanger investigations or investigative techniques.
Senator Grafstein: There is a short answer to that.
Mr. Ram: My understanding from the police community is that they want the devices back. They do not want to leave them where they might be discovered and damaged. From a very practical standpoint, the police seek to get the devices out as quickly as possible.
In most cases, none of this comes up. When an investigation is concluded, arrests are made and the police have access to the premises, during which time they will remove the devices. That deals with the problem of subsequent occupants. Once the suspects are arrested, the devices come out. There is, however, the possibility that that may not happen.
Senator Grafstein: The short answer to that could be an ex parte requirement to ask a judge whether they should remove it. In that way, there would be an obligation at the beginning and at the end to have the independent authorizing judge make the decision, not the police. At least there is some public safeguard in that, which would not exist if the decision were left to the police.
The proposed section (5.2)(a) reads:
under any terms or conditions that the judge considers advisable in the public interest;
Does that not, from a privacy standpoint, give the judge too much latitude as opposed to some higher test?
I tried to find the definition of "advisable in the public interest." It is a pretty broad test. It is not a tough legal test.
Mr. Ram: The wording is from some other Criminal Code provision.
Senator Grafstein: No, it tracks because if you take a look at section 186, it has a series of tests, and it is quite well drafted. An authorization shall state the offence, the type of communications that are to be intercepted, the identity of the persons, the known communications, the designation, and then it continues with "such terms and conditions as the judge considers advisable in the public interest." They have a whole hierarchy of precise tests. I think it is good draftsmanship, good protection in terms of the Criminal Code. Then it makes the general provision: "such terms and conditions as the judge considers advisable in the public interest."
All you do when you take it out is remove the more precise provisions, and leave, "advisable in the public interest." You take the softer test and deal with it. It strikes me that again what we are talking about here is surreptitious entry by police into a private residence at the end of a term when, for one or two major reasons, there is no evidence or not sufficient evidence, or the police decide that they do not wish to pursue this for whatever reason. I am talking about the former test as opposed to the latter test. They do not find anything. They go back in. I agree with the first proposition, which is that you notify the person. If he is innocent, you notify the person and say, "Sorry. We did it. We are taking it out. We want to tell you that we are good guys. You are clean."
If there are good public interest grounds, such as that the suspect may be a criminal with a long record, I can understand that. My concern is for the innocent person with no record. In my opinion, this is not a sufficiently tough test. I leave it there because I see where it is tracking from, and it is a little unfair to raise it at this time. I will give it some consideration and maybe you can as well, unless you want to respond now.
Mr. Roy: I can offer a couple of comments. I invite you to look at the other provisions in Part VI to see if you agree with the comment I am about to make. Part VI deals with electronic surveillance. The requirements provided by law, in order to get an authorization, vary depending on how invasive the procedure will be. The one we are talking about in section 186 is the most invasive. That is why you have a test that is rather stringent and states that you must satisfy a judge on a number of things.
However, the test itself, as I read section 186, is to be found in subsection (1) of section 186. The judge must be satisfied of what? That it is in the best interests of the administration of justice to give the authorization, and that this is a last resort. In other words, the state has tried other ways of investigating this and we tell the judge that we cannot get to this person. Therefore, this is the test that we must satisfy. On that basis, the judge will give an authorization that will contain the elements referred to in subsection (4) of section 186.
Senator Grafstein: I agree that is a higher test.
Mr. Roy: There is case law going back to 1984 in the Supreme Court of Canada that suggests that, as part of the authorization to intercept the communications of someone, the state has a right to go in surreptitiously and install the bug.
Senator Grafstein: With the higher test.
Mr. Roy: Let us not confuse the principle here. The principle is that you need a high hurdle to overcome, not because you install the device, but rather because you are going to intercept the communications of someone. That is a very invasive procedure. The privacy of someone is invaded for a period of 60 days when the microphone is in the room. They know exactly what has taken place in your house for 60 days. The law says that you must give some very good reasons for that. As an accessory to this, we are going to give you the power to go in and install your device.
What this provision is talking about, purely and simply, is not to continue to listen to the person but to go in to retrieve what it is that you have left in there -- nothing else. Our understanding is that, in order to satisfy the Constitution and to satisfy the privacy of Canadians, all that you need in those circumstances is to go to a judge and say, "Judge, we are satisfied that we have a need to go in and retrieve this device." The judge must balance against that the privacy rights of the people in the house. If the judge, having been told of all of the circumstances -- because the common law requires that the state give all of the information to the judge -- says, "These people have nothing to do with the investigation that you have conducted because the house has been sold. I order you, police, to go in, not in a secret fashion but to knock at the door and to say that you want to get your microphone." The judge is entitled to do that. In many cases, I am sure that this is what they will want to do.
In a large number of cases where we have not yet charged people, we are not in a position to tell them that they are under investigation or have been under investigation, but there is a need to go in to retrieve this equipment. We think that it would be important for the state to be able to do that in a secret manner.
The judge will be in a position to make that determination on the basis of the interests of justice.
Senator Grafstein: The test does not say that.
Mr. Roy: It says "advisable in the public interest."
Senator Grafstein: It is different from the other test. One is the administration of justice, and the other is public interest. It is a softer test.
Mr. Roy: Do you think so?
Senator Grafstein: Definitely. It is more general.
Mr. Ram: I would like to speak about the drafting process. If you look at the things that are included with "in the public interest" in subsection 186(4), the purpose of most of those provisions is to tell a court that is about to authorize installation and surveillance, where it is to go, what kind of a device it is, what kind of an offence is being investigated. From a purely practical standpoint, most of those things are known. The police, in order to get the authorization to remove, are going to say, "There is a device in certain premises. Can we please go and get it?" The offence, or the reason it was there, no longer matters. It was lawfully installed. This is no longer relevant. All the court needs to know is whose privacy we are invading by allowing the police to go in and get it, and is it appropriate to make it covert or overt?
Senator Grafstein: Madam Chairman, I will do a little bit more homework on this myself. When I read it, it struck me as being a problem.
I would just say to the witness that I think you are right in one sense. I just want to take a contrary view. In terms of privacy, there are two, quite separate, issues. One is the interference in a private communication. The other issue that is equally contrary to public policy is the surreptitious entry into "a man's castle." I am sure that you know all the rules in the United States with respect to being able to use sufficient force to repel someone from entering your house. It is an equally high principle. That is my only question.
I will come back to the committee on this issue and give the witnesses a chance to respond if I still have a problem.
The Chairman: It will have to be quickly because we will be proceeding to our clause-by-clause study at 10:45 tomorrow morning.
I thank the witnesses very much for assisting us today.
The committee adjourned.