Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 17 - Evidence


OTTAWA, Thursday, November 22, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-24, to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other acts, met this day at 10:52 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this meeting is now in session.

Today we continue with our consideration of Bill C-24, an act to amend the Criminal Code, organized crime and law enforcement, and to make consequential amendments to other acts. Our witnesses this morning are from the Canadian Bar Association, the Barreau du Québec, the Canadian Council of Criminal Defence Lawyers and the Criminal Lawyers' Association.

Please proceed.

Ms Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Heather Perkins-McVey and I are here on behalf of the National Criminal Justice Section of the Canadian Bar Association.

The Canadian Bar Association is a national association representing more than 36,000 jurists across Canada. Among our primary objectives is improvement in the law and in the administration of justice. It is under that rubric that we appear to make comments before this committee today. We have provided honourable senators with a copy of our written submission on this bill.

I will ask Ms Perkins-McVey, Chair of the CBA's National Criminal Justice Section, to address some of the substantive issues raised by the bill. Following the other opening statements, we would be pleased to answer questions.

Ms Heather Perkins-McVey, Chair, National Criminal Justice Section, Canadian Bar Association: I will make some general remarks. We have provided a brief detailing some of our specific concerns about many of the clauses of Bill C-24. The CBA has spent a significant amount of time looking at the legislation in conjunction with both the money-laundering legislation and Bill C-36, which of course we have all been examining in some detail in the last couple of weeks.

We are aware of the demands that have been made by the public and the provinces to deal with organized crime and of the concerns raised in the wake of September 11. Therefore, we are not making our comments or criticisms in a vacuum.

It is important to remember that through Bill C-36 we are proposing to give considerable power to the police. Bills C-24 and C-36, in our view, change the face of the justice system. Canada's justice system must be based on sound principles and the rule of law. We suggest that, as you listen to the submissions today, you consider Bill C-24 in light of the unprecedented powers that Bill C-36 proposes to give to police.

To couple that infusion of power for law enforcement agencies with the exemptions in the proposed section 25.1 with insufficient accountability is a genuine cause for concern. Honourable senators must not read this legislation in a vacuum. The two bills must be borne in mind when considering the powers that are proposed to be conferred.

The Canadian Bar Association is very concerned about the exemption from criminal liability. As set out in our brief, the proposed section 25.1 contains three levels of exemption. In our view, these are insufficient and vague in terms of their delineation. Of particular concern is the power granted in proposed section 25.1 (8). Let us consider this legislation using the analogy of an Oreo cookie, that being the lowest level. That level, I believe, was meant to encompass the least serious crimes. When dealing with this matter in consultations, we were always told not to worry because this is a broad and subjective type of power meant only for the least serious types of offences.

I urge honourable senators to look at how proposed section 25.1 (8) is drafted. In our view, it has been drafted in such a way that it has become the largest section of the cookie. Our Oreo cookie no longer looks like an Oreo cookie. We are giving a subjective power to a police officer without authorization from a senior officer or a judicial body. It requires only that the officer reasonably believes, given the offence being investigated, that such course is reasonable and proportional in the circumstances.

That portion of the bill causes us serious concern because it is, in our view, the broadest element and there is no attendant reporting requirement. There is no requirement for prior authorization from a senior official. The only requirement is that the officer be designated.

We have serious concerns about the lack of public accountability for police officers. While we are aware that most police officers do their jobs well, we have far too many examples in cases such as Morin and Milgaard, of inappropriate actions of police. Recently, two police officers were convicted in Saskatchewan for taking someone to the end of the road in the country and leaving him out in the cold. These actions are uppermost in the public mind. There is a concern about the need for police officers to be accountable.

We have a justice system where we purport to support law-abiding citizens. We try to promote that within our community as a laudable goal. Yet, we are giving powers to police to break the very laws we are trying to enforce. That fundamentally changes the view of law.

We are also concerned that the rule of law is not being honoured. If you look at the case law as it pertains to entrapment - which is how the issue of this exemption of liability arose - and if you read the words of the court, they talk about the fact that it is deeply engrained in our democratic system that the ends do not always justify the means. In particular, evidence or convictions can sometimes be obtained at too high a price. That, in our view, is one of the key problems with this legislation. We appreciate that there is a need to find the balance between law enforcement and giving law enforcement officers those tools and protecting the public.

In our view, the current Criminal Code provides the tools that are needed. We do not need proposed section 423, which talks about a new section of intimidation. We have sections in the Criminal Code that protect everyone against criminal harassment, against threatening - against the very type of behaviour that is set out in clause 10 of the bill. It would always be an aggravating factor if someone in the justice system were being threatened or pursued because of that type of activity.

The other area of concern is with the definition of "organized crime" and the creation of an offence whereby persons could be convicted for being members of those members of certain groups.

The Chairman: You are speaking now about clause 27?

Ms Perkins-McVey: I am talking about the actual offence clause, which is proposed subsection 467.1.

Senator Grafstein: What page is that on?

Ms Perkins-McVey: Page 32.

The Chairman: It is easier for us to find it if you do it by clause of the bill.

Senator Beaudoin: What clause is it?

Ms Perkins-McVey: Page 32, clause 27 of the bill to amend section 467.1 of the act. Proposed section 467.11 is found on page 30 of the bill.

We are concerned that this proposed section of the bill does not provide sufficient clarity in terms of the offence, the mens rea and the circumstances under which persons can be convicted.

Proposed section 467.11(1) creates an indictable offence of knowingly participating or contributing to the activities of an organization for the purposes of enhancing its ability to facilitate. Remember that "facilitate" does not seem to require knowledge. In this circumstance, the prosecution need not prove that the organization actually facilitated or committed an offence, that the accused actually enhanced the ability of the organization to facilitate or commit the offence, or that the accused knew the specific nature of the offence that might be committed, or that the accused knew anyone in the organization.

We have never had offences in the Criminal Code like that. How can you know with certainty when you have been committing the offence? An offence by error and omission is not sufficient to meet constitutional standards. These offences are so broad in scope that groups advocating environmental activism and civil disobedience may be caught. A group of criminal lawyers representing an accused may be caught up by the proposed section as it is drafted.

We do not support consecutive sentencing as set out in the proposed section 467.14. This is a mandatory cumulative sentence, which is overbroad in definition; it casts a very broad net through loosely worded offences and makes it too easy for disproportionate sentences to be imposed. It will always be an aggravating factor. The reverse onus on the offender to show that otherwise available parole provisions would apply is especially harsh when you look at the breadth of this proposal. It is very unlikely that a court would ever agree for normal parole eligibility to apply.

We believe judges should have the discretion to impose the appropriate penalties and we give, in the Criminal Code, discretion to judges because we believe they are the appropriate persons to hear the evidence, weigh the circumstances and determine a fit and appropriate sentence. When you start dealing with mandatory minimums, you take away all of that discretion to make the punishment fit the crime.

In general, we believe that better use of current resources to enable law enforcement officers to do their jobs is perhaps the best way to beat organized crime.

One of the significant questions to think about is, will this bill solve the problem? We suggest it will not. Yesterday you heard the Minister of Justice McLellan talk about the fact that this bill is different from Bill C-36 because it is meant to deal with the profit motive. Our position is that this bill does not focus sufficiently on taking away the profit motive of crime. If we were to look at decriminalizing soft drugs and prostitution, that takes some of the profit motive away from some of these persons involved in organized criminal activities. We believe that focussing laws such as the money-laundering legislation that has already been passed, which takes away the profit motive, will have a far better effect on combating organized crime than some of these overbroad offences that are contemplated in Bill C-24.

[Translation]

Ms. Carole Brosseau, Counsel, Barreau du Québec Research and Legislation Division: Good day, I am accompanied today by Ms Anne-Marie Boisvert, an associate professor at the Université de Montréal, who is also the chair or our criminal law committee. She will make the presentation on behalf of the Barreau du Québec this morning. First of all, I wish to inform members of the committee that I will be sending you our brief on Bill C-24, as well as a short summary of our various positions, early next week.

I will now yield the floor to Ms Boisvert.

[English]

The Chairman: As early as you possibly can next week.

Ms Brosseau: I think it will be on Monday morning.

[Translation]

Ms. Anne-Marie Boisvert, Chair of the Barreau du Québec Criminal Law Committee: Thank you for having us. I will be very brief because something tells me that there is likely to be some repetition in the presentations.

Nevertheless, I wish to note that I will not be acting as a defence lawyer this morning, but rather speaking for the Barreau du Québec, whose members include both defence lawyers and lawyers for the prosecution, whose mandate is to represent the interests of the public.

My comments will therefore be very general, and are similar to those you have just heard. It is important to mention the general climate in which we are speaking this morning. We need to look at Bill C-24 in light of recent events and imminent legislative amendments, particularly Bill C-36. The provisions of Bill C-24, even though they may look benign in some respects given what is coming with Bill C-36, are nevertheless significant legislative amendments that fundamentally upset several generally accepted principles in our system of law.

The bill addresses organized crime. We need to be aware of the fact that it is a catch all bill. Some specific provisions are applicable to organized crime, but some, specifically section 25 of the Criminal Code with respect to police powers, are applicable to the whole Criminal Code and to the whole system of law. They are not special provisions to combat organized crime, but rather general provisions to combat crime in general.

There are some excessive provisions. The proposed definition of organized crime is extremely broad. Three people constitute an organization. The new offences on page 30 of the bill create something that we have never had in Canada, namely an offence by association. These provisions, like Bill C-36, import new concepts into Canadian criminal law. From now on, in certain instances, the facilitation of and contribution to criminality become crimes themselves. In our view, these are concepts that go well beyond the known concepts of aiding, abetting and complicity. They completely change our view of criminality and what constitutes a crime.

On another front, several excessive provisions having to do with police powers, freezing property and electronic eavesdropping cover the special category called designated offences. There is already designated offence legislation. There was already a short list. It is important to understand that from now on, all offences in our system of law that are not excluded constitute a designated offence. Hence the concept of a designated offence is now meaningless and is no longer anything special. What is special is that the concept of a designated offence is now excluded.

The Barreau du Québec agrees with what has just been said about the new police powers. The context surrounding the decision to adopt such measures is a bogus emergency context. I will simply mention that approximately fifty motorcycle gang members were recently arrested in Quebec without the need for the special provisions of Bill C-24. The artificial urgency maintained around a decision of the Supreme Court of Canada created a feeling of urgency that needs to be placed in perspective.

What it amounts to is saying that the police in Canada are above the law. The precautionary measures included in the bill are what they are, namely rhetorical precautionary measures. I feel that it is shocking to say that the police are justified. Beyond that, what has been presented as a means of defence is nothing other than the granting of new powers to police forces. History has taught us that once powers are given, it is extremely difficult to withdraw them or go back. They are granted once and for all. Preparations are being made to give the police new powers at a time when, independently of any matters of urgency, no evidence has been given to show that the resources the police already have are being used efficiently. A number of commissions of inquiry in Quebec have demonstrated that there was room for improvement.

The Barreau du Québec fears that powers will be abused. It also feels that mechanisms to control the powers given to the police are so minimal that they do not exist. The annual report mechanism has so many exceptions that the report would not fit into a paragraph. Nor is there any real civil control over police power. We genuinely fear that the police would operate in a vacuum, without any possibility of controlling them.

Furthermore, we have concerns about the extent of powers granted. Because of the sensitivity of public opinion, the police will not be allowed to sexually assault people. We understand why this should be the case, but there are some violent offences against the person that are not excluded. Forcible confinement for example. The mechanism for following up or sending notices to those against whom property offences have been committed is wholly inadequate. There is nothing to compensate innocent victims in the battle against crime and there is also nothing to compensate people when their physical integrity is violated. It is important to understand that some forms of assault are authorized.

I would be happy to answer your questions.

[English]

Mr. William M. Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable senators, I appreciate the opportunity to be here on behalf of the Canadian Council of Criminal Defence Lawyers. I do not know what this committee has done to deserve dealing with so many important bills in the last little while.

At the risk of reiterating something I said on another bill, this is one of the most important pieces of criminal legislation that honourable senators will see. We really must depend on this committee to have a careful look at what the provisions of this bill are proposing, as the committee did on Bill C-36, and youth justice and perhaps others.

This is a fundamental change in the criminal law. For the first time, Parliament is seeking to criminalize behaviour that is unintentional in relation to the definition of organized crime and participation. Knowledge is taken out. If you read the clauses carefully, knowledge is removed. We are criminalizing behaviour without the mens rea. Second, we are excusing intentional criminal conduct by the police. These two basic tenets that run through this bill are the ones that concern the Canadian Council of Criminal Defence Lawyers and my colleagues and citizens throughout this country.

I am not here to criticize the police, but this if this legislation died on the Order Paper nothing would change. This country would not fall apart because the Criminal Code has all kinds of provisions for the police to carry out their lawful duty in relation to organized crime and any other type of crime.

There is a very powerful and successful police lobby in this country that says, "Give us more powers. We will not abuse them." I urge you to be very careful in relation to examining what this bill may do. There are police officers who think they need more powers. It is our submission that they are not using the provisions that exist under the Criminal Code at this particular point in time.

From where is this movement coming? There is no question about it that, in the last while, there has been a real concern about the emergence and the spread of biker gangs. I am not suggesting that biker gangs, perhaps starting in the Province of Quebec, which seemed to be a problem, spread throughout the country. There may be some problems there but the concern is now terrorists. The bikers are moving somewhat off the front pages. I want all of us to be careful that we are not reacting to emotive events in our community and changing the criminal law fundamentally. We urge you to be careful in examining the provisions of this bill that goes a long way.

I had the honour to appear in front of the House of Commons committee on this bill. I had the honour on that day to be with a representative of the Quebec police force. They were talking about the successful prosecution of some bikers that took place over a year ago in Quebec. They said that a couple of them were acquitted because they could not prove knowledge. If we had the new bill, however, they would have been convicted. This legislation is a shortcut to the proper application of criminal justice in this country. I urge honourable senators to be careful.

We have submitted a small brief. I recommend the submissions of the Canadian Bar Association and my colleagues to you. The Canadian Council of Criminal Defence Lawyers brief addresses a couple of issues that I commend to you when you get an opportunity to look at it.

Mr. Michael Lomer, Counsel, Criminal Lawyers' Association: Honourable senators, thank you very much for inviting a representative of our association to appear here today. The Criminal Lawyers' Association is an association in Ontario of 1,000 practising criminal defence lawyers. It is a volunteer organization, but it is not without members who have some expertise in the area. I note in passing that the genesis of part of the legislation that is under discussion today, Campbell and Shirose, the president and vice-president of the Criminal Lawyers' Association were the counsel on that case in the Supreme Court.

It is important to understand the history of this matter. I have been riding this particular legislation since it was a white paper in September of 2000 when it was proposed. My comments will focus primarily on proposed section 25.

The existing section 25.1, which is in the Criminal Code currently, provides for a bright line analysis of justification for acts committed by police officers if done on reasonable grounds. That is all that is really said in the Criminal Code when we are focussing on police officers potentially breaking the law.

Not surprisingly, we have seen all over the country that the reasonableness of the acts have become subject to heavy regulation. One need only think, for example, of the police chase regulations in Toronto with which I am familiar, where the police are given a set of stringent guidelines as to what is reasonable in certain circumstances when they engage in a police chase.

In Canada, we have had a history of regulating the reasonableness of police otherwise potentially criminal activity or breaking the law, for example, running a stop sign or a red light on the low end of the scale to much more serious things. Campbell and Shirose was a reverse sting that was subsequently legislatively fixed. We now allow - and no one questioned the appropriateness of allowing police officers to deal with contraband, whether it is drugs, counterfeit money or anything of that nature - the police to find out the makers, distributors or purveyors of those narcotic or contraband substances. That was never the problem. It was just that the activities of the police had gone past what the legislation had allowed them to do.

The system that we had prior to Campbell and Shirose being decided by the Supreme Court - arguably that it did nothing except state what the status quo is, namely, that no-one is above the law - was a system of legislated reasonableness. It was circumscribed by pre-authorized legislative fiats, whether by regulation or by law. That pre-authorization regulated police behaviour.

This proposed legislation will authorize, once and for all, delegation to the executive in the accountability sense - and that is in that delegation clause - and to the police in a practical sense, the decision-making on the issue of the reasonableness of police activity.

Understand that what has happened is that instead authorizing police potential criminality on a case-by-case incremental way - allowing it by regulation - we are now, once and for all, saying, "You can do any criminal activity; we have given you some controls but the criminal activity is now in your ballpark. You get to decide with a few exceptions." I will come to those exceptions in a moment.

The exceptions are found in proposed section 25.1(11)(a) states: "the intention or criminally negligent causing of death or bodily harm to another person." It is the wording "intentional causing of bodily harm" that this committee should be aware of.

The general criminal law in cases such as Creighton say that the intent necessary is the intent to commit an assault. What it becomes, is dependent upon the consequences of that assault, not on the intention of the assaulter. For example, if I were to hit someone, and it caused a red mark, that is common assault. If that person fell backwards, hit their head on a curbstone and died as a result, that is manslaughter. The intent is exactly the same.

In this bill, they are creating a new intention. An intention to cause bodily harm is the threshold. As long as the undercover police officer or agent says, "I did not mean to do anything more than just assault him," you could have serious physical harm being done to potentially innocent people that your bill, as it stands now, will justify.

The limitation is potentially open for that type of assaultive behaviour to be done. You must also realize - we saw this in the White Paper - that we have virtue testing. These criminal organizations will virtue test our undercover operatives. They will all say, "Well, commit a criminal activity and then we will know whether you are a police officer or not."

In the previous law, there were no explicit things that police officers could not do. Now you have told you what they virtue test on. You have written it right out, there it is: "Nothing in this section justifies conduct that would violate the sexual integrity of an individual." That could be quite minor, relatively speaking, and yet that is your virtue test. Thus, these organizations could, by virtue of the law, now know what it is that they can do to ferret out the undercover officer. Whereas before we did not say anything about it and if we did not say anything about it in the law, they would not know.

In my submission, generally it is wrong-headed for us to delegate completely to the executive and to the police the power to decide what criminal behaviour they will commit. However, it looks like, unless this legislation is radically changed, that will happen. Having the limitations in there will not assist. It will not do us any good or do the police any good because it will still expose them potentially to this virtue testing that they were so worried about when we had the White Paper and the round table discussion.

At that round table discussion, there were members of various policing communities and Attorneys General across Canada. The sense I had was that the representative Attorneys General did not like the idea that we would be authorizing assaultive behaviour on the part of our police undercover. I use undercover because those were primarily the examples given. They did not like that and it caused some concern.

I asked them directly, "Why do you not make a list of all the pieces of legislation that interfere or hinder you in the doing of your job? Tell me what it is and we will see if there are things that are non-negotiable." They came up with things like the Innkeepers Act. They cannot register under a false name. We can amend the Innkeepers Act. That does not make any sense. They came up with the counterfeiting example that I used before. I said that no one seriously says that you should not be able to operate undercover dealing with contraband in order to catch the makers or the distributors of the contraband.

They talked about the Highway Traffic Act. Campbell and Shirose, whatever it does say, certainly does not have any suggestion that the courts will throw out trafficking and serious criminality because someone blew a stop sign. That is not what this is all about.

When it really came down to the point of asking the law enforcement people to give us concrete examples of what they wanted, there was just silence ultimately. We could give them everything that they imagine. Why is it they want this power? I leave that to the committee. I do not know why that is, except that is another power that they will have.

The Criminal Lawyers' Association's position is that in a free and democratic society the only approach that can be justified with respect to making otherwise criminal behaviour non-criminal by our police enforcement agencies is the present approach. This is an incremental case-by-case approach - "you show us what you need and why and we will decide whether to give it to you or not." Any encroachment to that is an encroachment to the rule of law, and must be examined and justified before it is enacted.

I will paraphrase Justice Binnie in Campbell and Shirose. He said, that Parliament has put the police above the law is very serious with constitutional ramifications beyond the boundaries of the criminal law. Justice Binnie also noted that a general law enforcement justification would run counter to the fundamental constitutional principles outlined earlier in the judgment.

It is already forewarned that the constitutionality of certainly clause 25.1 will have a rocky road, but it is not necessary to do what you need to do.

I would like to bring one other thing to your attention. It is the definition of criminal organization offence. It is clause 1(4)(a), "an offence under section 467.11, 467.12 and 467.13, or a serious offence..." Keep in mind that a serious offence is any offence that is indictable with five years or more. That would include common assault if you go by indictment. Any "serious offence committed for the benefit of," and I emphasize those words because those words do not require any knowledge component that you know that the organization is a criminal organization before the person incurs a benefit.

Let me give you an example: You have a person who deals in stolen property, a "fence." It is clearly a serious offence because it is a 10-year indictable offence. He deals with a person who sells him a stolen car that he knows is a stolen car. He then sells it, gives the money back to the person who sold it to him. Unbeknownst to that person, the fence, the other person is an organized crime member. Now, not only it he guilty of the offence that he is guilty of, which is dealing in stolen property, but he has now committed a criminal organization offence for which he gets a second consecutive sentence and his parole eligibility is doubled to have parole. He has done nothing different from before, so the question you must ask yourself is, first, does that pass constitutional muster? Your researchers may want to take a look at the motor vehicle reference and the cases that have followed that to determine whether in fact that does. In any event, you have now super-criminalized what is ordinary criminal behaviour.

On that point, I am prepared to answer questions.

Senator Beaudoin: I have two questions. The first relates to the Campbell case, to which some of you referred. The second is with respect to clause 11 on page 18, where it is stated that we create a new offence. There is a phrase "without lawful authority" is strange to me. What does that mean?

First, in regard to the Campbell case, the police were with us yesterday for two or three hours. They referred often to that case, saying that that case suggested that we need legislation to empower the police to do their job. They consider that this bill is the right answer. I would like to know your reaction.

[Translation]

The Barreau du Québec said this morning that there was no need to create a new offence because the Criminal Code already has such provisions. I would like to hear your reaction to this.

Ms. Boisvert: There has been a great deal of discussion of the Campbell and Shirose Supreme Court judgment. I would like to place it in perspective. Campbell and Shirose were charged with serious drug offences and requested a stay of proceedings because of police wrongdoing. It was alleged that the police committed an offence by selling drugs. The Supreme Court denied the stay of proceedings and Campbell and Shirose were convicted.

However, in pronouncing judgment, the Supreme Court justice said that the police had committed unlawful acts. It is now being alleged that it will be impossible to convict anyone because unlawful acts are disallowed. I repeat, Campbell and Shirose were convicted. In response to the claim that investigations will become impossible because it would amount to leaving oneself open to legal action by attorneys because of offences committed, I would like to see a long list of police officers against whom legal action has been taken.

In Quebec, the RCMP unlawfully laundered millions of dollars through an exchange office that they had set up. To my knowledge, no legal action was taken against any of these RCMP officers. Furthermore, the major criminals who were sent to prison as a result of the operation are still there.

When it is said that in the Campbell and Shirose case, the Supreme Court decision created an emergency situation which meant that there could be no further investigation, then it is important to ask what precisely is being requested. The bill assigns the power to decide whether and under what circumstances it is reasonable to commit offences. It is clear upon reading the bill that the things reviewed by the MacDonald Commission of Inquiry in connection with the incidents that occurred in the 1970s in Quebec would not have happened. It would be considered acceptable for the RCMP to have stolen lists of members of political parties, burned barns or whatever else it may have done that gave rise to the many years of investigation by the commission of inquiry. It is important to realize this.

Senator Rivest: The Commissioner of the RCMP told us yesterday that there were 59 infiltration operations under way in the RCMP at the time of the Campbell and Shirose decision. Following the decision, there were only two, because they were afraid of laying themselves open to prosecution. You are telling us that independently of this act, police departments have no trouble carrying out their work. They, on the other hand, believe that there is a problem because they put an end to 57 infiltration operations. That's a lot.

[English]

Mr. Trudell: Does "59 infiltration operations" mean 59 infiltration operations where the police were breaking the law? Campbell and Shirose basically said that the police cannot break the law, regardless of their motive and regardless of whether they think they are going after the bad guys.

In Campbell and Shirose, the police tried to sell narcotics. It was okay for them to possess narcotics, but they went one step further. The Supreme Court of Canada said that the police are not above the law, and that is the rule of law. As a result of Campbell and Shirose, anecdotal evidence was passed around the country that the ruling had tied the hands of the police, making it impossible for them to do their job. Frankly, it is anecdotal evidence that only two of 59 infiltrations were able to continue. What does "59 infiltrations across this country" mean? Does that mean 59 infiltrations where the police decided to sell narcotics?

Campbell and Shirose said that if there is a war on drugs and Parliament has done nothing about it, then it is up to Parliament. The court did not say that Parliament should do something. It said that it is up to Parliament if something like this is going to take place.

Our concern is that this is simply a shortcut. In an in camera hearing, ask the commissioner about the 59 infiltrations that stopped. In response to Campbell and Shirose, proposed sections 25.1 to 25.4 are introduced, supposedly as part of an organized crime package. This has nothing to do with organized crime. This would allow any police officer to commit an offence. These sections are introduced because of all the ongoing investigations.

The evidence is anecdotal. I could tell you horror stories about how the police have stepped on my client, and then the police could tell you horror stories about me stepping on the police. The truth is a balance.

With the greatest of respect, it is unfair for the commissioner to say that they had to give up 59 major investigations. What are they? Are there other areas they can move into?

One of our major concerns is that there is no accountability here. These proposed sections would enable not only the police to commit offences. Agents of the police - informants - are included in this. This bill covers guys on the take who have been giving information to the police. There is no accountability.

When the government introduced this bill and officials appeared before other committees, they said there was no need to worry because the Solicitor General and the Attorneys General will answer in their annual reports. Look at the escape routes on pages 8 and 9. Proposed section 25.3 reads:

(2) The annual report shall not contain any information the disclosure of which would

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(d) prejudice a legal proceeding; or

(e) otherwise be contrary to the public interest.

The police can always tell the Solicitor General that they cannot inform him because it might compromise the investigation or be contrary to public interest.

Under proposed section 25.4 subsection (d): they do not have to notify someone who has been the subject of illegal activity where they have lost property if it prejudices a legal proceeding or is otherwise contrary to the public interest. There is no accountability. They can always say, "We cannot report."

Senator Beaudoin: The police officials yesterday said that they need legislation because of Campbell and Shirose. They said that if they are authorized by a statute to do something, then they may do it.

Do you agree or disagree with that interpretation of Campbell and Shirose? That case is, to a great extent, the basis of this bill.

[Translation]

Ms Boisvert: Who, apart from the police interpret the Campbell and Shirose decision in this way? Who sees an urgent need for legislation in this area? The question is extremely serious.

[English]

Ms Perkins-McVey: We are all in agreement that Campbell and Shirose did not change the state of the law. As Mr. Trudell and Mr. Lomer have indicated, in the past there was case-by-case analysis tested in the court under the scrutiny of a judge and with disclosure to the defence. There was a determination as to whether the ends justified the means in accordance with the rule of law.

This legislation - and I think this is an important point - does not just deal with organized crime; it deals with every section of the Criminal Code. If you look at the definition on page 4, under the proposed section 25.1, you will see that it expands this kind of subjective ability to be exempt from criminal liability to Customs officers, fisheries officers and a broad base of persons. Those persons are not dealing with organized crime.

If a specific bill to deal with organized crime is needed, then this bill should be scrapped. They should refocus the concerns to deal specifically with organized crime. These exemptions from criminal liability change the entire face of how we look at criminal law. It puts police above the law. That is a very grave concern.

Mr. Lomer: To answer your question concerning the commissioner who has these ongoing investigations that he had to scrap, I would have dearly loved to have been there to ask him this question: What criminal activity was it that your police officers were committing that they were not authorized to do that caused you to scrap that investigation? Quite frankly, I doubt that there was any. I think it is a perverse interpretation of Campbell and Shirose by the law enforcement community. I regret to say that I think that is what is going on.

For example, immediately subsequent to the judgment in Campbell and Shirose, they brought in regulations that said that the police cannot buy and sell narcotics in order to operate reverse stings. It is no longer an issue.

The Chairman: Campbell and Shirose did not do that, the government did that.

Mr. Lomer: That is right.

Senator Beaudoin: Proposed section 11 of the bill states:

No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in ...

Legally, this is clear-cut. What is not clear in law is "without lawful authority." What does it mean? Is it the police, the court or the minister? To me, it is very difficult to know. What is your reaction to that?

Mr. Trudell: I do not know what "without lawful authority" means in that clause. This clause was introduced to protect justice officials - and added with journalists in mind - as a result of, again, an apparent need throughout the country. There seemed to be more and more people intimidated in the justice system and then there was that terrible shooting in Montreal.

I do not know what "without lawful authority" means. I do not know why those words are in there. I do not think they add anything.

Senator Beaudoin: You do not know more than I do on this?

Mr. Trudell: I know much less than you on this and many other things.

Senator Beaudoin: It is a new infraction.

Mr. Trudell: Yes, it is.

Senator Beaudoin: The difficult part is "without lawful authority." Is it the court, the police or the minister? It depends. To me, it is of the greatest importance because they may commit an infraction. That is my question. I do not know if you have an answer to that question; I do not.

Ms Boisvert: We could try to guess. I would guess it means that the police can keep an eye on certain people.

The Chairman: Are all these words not in the Criminal Code, certainly as far as intimidation is concerned?

Senator Beaudoin: Yesterday, they said there is a section in the Criminal Code to that effect. Perhaps we do not need it, I do not know; I do not affirm anything of which I am not sure. To me, they have the power, apparently, to do that. I believe they considered that the police or the minister had the power. After all, it is a new crime. It must be very precise.

Ms Perkins-McVey: That is the concern that we have. I refer members of the committee to section 264 of the Criminal Code. It is the threatening criminal harassment section of the code. In our view, that section clearly covers this situation. It covers the kind of situation that we think they are trying to deal with.

The bigger concern is what exactly is the mens rea of this offence under section 423.1? The clause states, in part: "... to provoke a state of fear in (a) a group of persons or the general public in order to impede the administration of criminal justice;" That is very vague. Is riding a motorcycle while wearing a leather jacket something that will provoke a state of fear? Possibly. It is a vague standard of proof. That is one of the concerns we have. That feeds on the concerns that you raise, senator, about this proposed new section.

In our view, the present section 264, which covers threats and intimidation, is more than sufficient to cover the entire Canadian community. It does not specify this group and bring them above the law. Obviously, it will be an aggravating factor, if you try in any way to obstruct the administration of justice, which is another section of the code that deals with this kind of activity.

Senator Beaudoin: One of you said that we "criminalize behaviour." Was it Mr. Lomer who said that?

Mr. Lomer: I think I see what the answer is. It is really the defence for law enforcement personnel. If you could imagine, for example, someone who is downstairs in a courthouse who insists that you go through a screening device and the justice system participant - let us say the defence lawyer - says, "I'm not getting screened unless the Crown gets screened," or something of that nature. Then you have a big brouhaha at the courthouse.

This will give the lawful authority to the person who is saying, "All I wanted to do was to have him pass through the screen." He was entitled to ask for that and he did not otherwise impede the justice system participant. Maybe that is what it is for.

Senator Grafstein: This has been a very thought-provoking presentation. It causes me great concern because I do not agree with one of your premises, yet I agree with some of your comments. Let me deal with the premise first.

You have all said that this is a new offence; it goes far; it is unseen and so on. Frankly, if you look at the evolution of the criminal law, you know the criminal law started as not an approach to a group but really an approach to deal with individuals one at a time. What has happened in our modern society, which is interconnected and interrelated, is that we now have to deal with a new phenomenon. The minister is quite right when she suggests that there are new phenomena in society made more difficult to police because they are groups. They are using all the modern techniques of groups that are available. Some are for disastrous consequences, like the cells that we have read about in the newspapers. We know that they are potent. We know that they use brilliant techniques of organization, but they are collaborative efforts.

In this bill, the minister has, I think, brought to our attention her answer, and the government's answer, to a clear and present danger to public safety and order, which is the rise of skilled, intelligent, well-financed and well-appropriated groups. We now know that there are three types, and there may be more. One is obviously what we are trying to address with the terrorist bill. There were the old crime groups in the United States. In Canada, we now have a phenomenon that is more North American than not, namely, mobile gangs which are, in part, coming together. This is not to cast an aspersion on all of them, but they are coming together for criminal purposes. That is the difficulty that we have here. However, to say that this is unheard of is not to deal with the nature of the threat to public order.

I will give you my premise and then I will come back and show you where I agree and disagree. I want to take you through the minister's thought processes and Parliament's thought processes to show that you there is a clear and present danger. The question is: To what extent must the law be modulated in order to encapsulate and to protect public safety? We have that responsibility.

Having said that, I want to start with some specific questions. First, if I hear your testimony correctly, you have four areas of concern. First, there is the question that the police are not properly controlled; that is, there is not a proper oversight mechanism for police action in pursuit of their duties. Second, there is the mens rea issue in terms of groups. Third, there is a question with respect to the penalties. Mr. Lomer has raised another one with some of the general elements that are included in the bill. It is almost a potpourri of issues that are not really directed to the heart of the problem. I want to break these four areas out and concentrate on just two for now.

It would be helpful for me if you could do some homework for us. I have been trying to do it myself and I cannot. To support your position, it would be interesting for you to do a comparison between those four areas and say, "Here is what the Criminal Code is today and here is why it is sufficient. Here is where these new areas go too far and the reason why they are insufficient." We would then not have to look at the sections and try to listen to what you say, and so on.

You have made the point - and I think you must support it now in writing - about the clauses that are adequate, where the government is going too far, and where it is unnecessary for the government to go so far to achieve their end, which is to deal with the clear and present danger to public safety.

I think you know what I am talking about. It is hard for us to jump from clause to clause and listen to your points. You have made a cogent point. I want you to support it because there are very strong provisions in the code to deal with questions of conspiracy, of group action, of group intent, and so on. It would be very helpful for all of us, and for those who are non-lawyers here it would make it clearer. I can see that the non-lawyers on the committee are swimming. I am a lawyer and I am swimming in this stuff. That would be helpful.

Having said that, I want to deal with those two areas now. One is the question of lack of police oversight and lawlessness on behalf of the police. Please tell me if, in your view, those provisions are unconstitutional. In other words, does it offend the Charter?

My second question - which is more complex - concerns mens rea and intent and whether the lack of knowledge of a group that facilitates a crime offends the Charter in section 7.

Let me deal with the second question because the first is easier. Our witnesses have raised two fundamental issues that are troubling to me. I think I agree with you on the former; I am not sure if I agree with you on the latter, which is the question of the mens rea.

What do we have in front of us? The Supreme Court has ruled on mens rea. No one disagrees with it and it is best summed up in these words. Martin's Criminal Code, chapter 17, under the Charter, will give you a sense of what I am thinking about. It states that:

There is no principle of fundamental justice which requires an absolute symmetry between the elements of actus rea and mens rea. Thus, there is no requirement that there be a proof of mens rea in relation to the consequences of the element of actus rea.

They use death as an example. Lay aside death, because we are not talking about a serious offence like death. We are talking about a whole raft of collateral offences that involve serious violence, and so on.

A person could be a member of a group and could have knowledge of the activities of the group in general. However, they do not have knowledge of the group in specific terms. That, in fact, they are there to help or to facilitate the group, for example, to organize a clubhouse or to be available to provide money for the gas for their motorcycles. In other words, that person is indirectly assisting and facilitating the group. I am using the word "facilitation" here. The key new word here is "facilitation" as opposed to "aiding and abetting." Aiding and abetting is pretty clear; facilitation takes that one step further. You know what I am talking about. I am trying to deal with this on a legal basis.

The argument is, for example, I am a member of the group or the gang. I come out and I say, "Hey, guys and gals, you need some money for gas." I go out and get some money for gas and they go off somewhere. I am not on that trip, but I know what they are doing. I am facilitating them. Do you then say to the police, "Please use your supernatural powers?" The guy who provides the money for the gas, in my view, is a collaborator or an accomplice to the offence. It makes it almost impossible for the police, failing this provision of using the test of facilitation, to be able to prove that that person is involved in the actus rea. Therefore, he may be involved indirectly in the actus rea but he has no mens rea of the specific offence. He does not know what they are going to do. They are on a hunting expedition. They are marauders. Tell me how the Minister of Justice is to cope with that. You have not given us an answer to that.

Mr. Trudell: I will take a crack at a couple of things that you said.

Senator Grafstein: Focus on the last question because that one troubles me the most.

Mr. Trudell: Can you give me two seconds on the first?

Senator Grafstein: Sure.

Mr. Trudell: There is a question of resources here. You do not change the law because the police cannot get the job done. You give them the resources. There is no police force in this country that is properly resourced. If there is a big thing going on - for instance, the tragedy that took place on September 11 - all the police forces and all the RCMP in this country would probably be seconded to do that one thing. That is unusual. Frankly, if you give them the money and the tools to ensure that they do not have to beg for budgets, then they can keep up with the sophistication in organized crime or any other crime in this country. We under fund them. They may share computers. Those are two separate issues. The funding of proper police forces is a very important issue and it should not be replaced by legislation.

In relation to your last comment, there is nothing wrong with riding a motorcycle. There is probably nothing the matter with being a member of Hell's Angels, because there are Hell's Angels picnics where they gather in one of the cities in Ontario every year. Sometimes what they do benefits the community - the local taxpayers, businesses and may benefit charities. The fact that I am a member of Hell's Angels or the fact that I run a gas station that fuels that motorcycle does not mean that I am facilitating the commission of an offence.

However, if I am wilfully blind, if I know when I fill up that gas tank for those four guys that they are bank robbers, I know what they are doing, I saw they had guns, then by proper police investigation I have knowledge. I do not want to ask any questions because I am just selling the gas. In those circumstances, it is quite different. What this bill does, however, is it comes awfully close to the notion of membership in a group can get you branded with the criminal stigma. That is our concern.

Senator Grafstein: Mr. Trudell, I have heard your argument and, frankly, I am not here to deal with resources because the Senate does not have the power to deal with money bills. We must focus on what we can focus on. We all understand the problem of resources but we are here to deal with the specifics in legislation so I would like to focus your attention on that.

In the example that you give it can be a gasoline station, it does not matter what. They are there facilitating. They are giving them gas, providing them with that. These people go on a joy ride, but they are out as marauders. How do the police establish aiding and abetting without direct knowledge of the actus rea? How do they curb people who are facilitating this? People do not go into a group blindly. They quickly understand the nature of the group and some of the wild ones in the group, and then they have made a choice. They have entered into that group that may or may not be doing active things against the public order, and that is a choice. That is a membership choice.

If I join a group that I know contains criminal elements and in any way, shape, or form abetting those people who from time to time may be criminals, am I not in effect facilitating a criminal conduct? Is that not enough? That is the choice.

Mr. Trudell: I say no, because then we have a membership offence. Forget about the bikers for a minute because the bikers connote all kinds of fearful things. Let us talk about any other organization.

Senator Grafstein: That is the same thing.

Mr. Trudell: With great respect, senator, it may not be. Some people in this country have been programmed to see a motorcycle and a leather jacket as the beginning of marauding. Quite frankly, what we are saying is there is nothing wrong with being a member of an organization and what you are suggesting, with great respect, is that a mere membership is sufficient.

The Chairman: Would you include a triad in that description?

Mr. Trudell: No. All I am saying is this: If I know that the organized crime group is there to commit criminal offences and I facilitate them, I help them, I aid them or abet them, then I am running afoul of the law.

Senator Grafstein: How? What provision of the code?

Ms Perkins-McVey: The current section 467.1.

Mr. Trudell: Conspiracy. You do not need these new provisions to catch the person who clearly knows or is wilfully blind about this organization, and those are good examples. You say, for instance, a cartel. I know that they exist for one thing only: To traffic drugs into our schools. I cannot pretend that these guys also support the Boy Scouts. There is a knowledge there, or wilful blindness, which is already covered by the Criminal Code.

Ms Boisvert: I will be very short. I will try to answer you from a different angle.

What is objectionable in this piece of proposed legislation, as in many others, when you read the section of the law and you see a face or a name you can call it anecdotal legislation. There was a journalist shot in Quebec and some parts of this bill I read with his name in mind. I am not sure that this bill is needed to convict the people who did it, first. When we read these clauses we have these names or these events in mind, but our training makes us see other events, which are not contemplated but that might be caught by the clauses.

I am thinking now about some farmers in Quebec who live with the problem of gangs planting marijuana on their fields. They are clearly facilitating within the sense of this proposed legislation. They would become members of organized crime given the loose definitions. As members of criminal organizations, section 17 of the Criminal Code takes away any defence of duress for them.

When you insert new dispositions like this into the Criminal Code, it affects the entire structure or it inserts itself in an existing structure. Perhaps we are good at imagining scenarios, but it is a good example. The farmers in Quebec, when they tolerate something out of fear, will be considered members of organized crime with no duress defence.

Senator Grafstein: You say this removes the defence. Is section 17 removed?

Ms Boisvert: No, but section 17 says that when you are a member of organized crime you have the duress defence. It is already the state of the law. The bigger you stretch the definition of organized crime or group, the smaller this duress defence, which exists already, becomes.

Mr. Lomer: Senator Grafstein, as you know, as a practical matter, it is always difficult to prove what is in the mind of an individual - what they know and what they do not know. That is why judges are always in the habit of instructing juries that you take, as a general proposition, that you intend the natural consequences of your acts.

However, if you look at the individual and the acts that you can prove - that individual does pump the gas and takes money for the gas, or something of that nature - those acts in and of themselves do not tell you a whole lot about what is going on in that person's mind. You can see that that type of instruction does not assist you.

The difficulty with the legislation is that it goes farther even than what we would consider relatively innocuous acts, and thereby drawing from those some type of criminality. However, in proposed section 467.11, subsection 2 which is the participation in these criminal organizations, at page 30-31, you can take a look at the things that the prosecution does not have to prove. If you look at all the things they do not have to prove, it is all the things of ordinary criminality. They are the things that if they did prove you could prove the necessary criminal offence to convict a person. Those are all the things you do not have to prove in this legislation.

If you look at clause 467.11(3), the factors that allow you to conclude that the person is a member, relatively speaking these are all innocuous. They use the name, word or symbol. As I mentioned to the House of Commons committee, if that stays in the legislation the first thing that the Hell's Angels or any other biker gang will do is start to franchise their logos. The next thing you will see they will be as common as Raptor's logos. Then where will you be with that? Every kid who wears a Che Guevara t-shirt is not a revolutionary. It does not tell you what is in their minds.

Senator Grafstein: Yes, they are.

The Chairman: It does say that the court "may consider."

Mr. Lomer: It does say "may consider," but look at what it may consider. It may consider the relatively innocuous things, not the criminality that you want to get at.

What are we doing by saying that you do not have to prove the criminality and you can look at the relatively innocuous? They are trying to establish guilt by association. In other words, without proving what the person knows. That does not seem right to me, but I understand why you said what you did with respect to the impetus that the government has for dealing with organized crime. In my submission, however, as a bottom line you still must prove that they knew something that made it criminal in nature.

Senator Grafstein: Mr. Lomer, you are saying it is contrary to section 7 of the Charter.

Mr. Lomer: If you can posit objectively a situation where that person does not have the requisite criminal knowledge, and yet you will put him in jail with enhanced criminal provisions, such as half-time, no parole and that sort of thing, I cannot help but think that you will be violating section 7 of the Charter.

Senator Cools: Mr. Trudell, although you may have chosen a poor example, your point is valid and should definitely be considered by us. I am thankful that Ms Boisvert came up with another example to assist us.

We all know that our society has grave problems with the phenomenon of organized crime, gangs, et cetera. Action is required by the government.

We are told that this bill is the result of Campbell and Shirose. At paragraph 39, the court says:

Parliament made it clear in s. 37 of the Royal Canadian Mounted Police Act, that the RCMP must act "in accordance with the law". Parliament has made it clear that illegality by the RCMP is neither part of any valid public purpose nor necessarily "incidental" to its achievement. If some form of public interest immunity is to be extended to the police to assist in the "war on drugs", it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available, as indeed was done in 1996, after the events in question here, in s. 8 of the Controlled Drugs and Substances Act.

I am sure that you know that I am not a great supporter of the judicial activism of the courts. Sometimes I think that some of the law would have developed more effectively were it not subjected to constant judicial expansion. However, that is another point for another day.

Mr. Lomer raised an important point. He said that in delineating and identifying the limitations to the exemptions the bill identifies the tests that these gangs or otherwise undesirable persons would be able to apply. We all know that some of these biker gangs have some fierce and nasty initiation processes. To become members, individuals must prove their willingness to do these things. I understood from Mr. Lomer that these are some of the tests that may be applied to these individuals. He is saying that the bill is flagging the critical areas by which the identity of an undercover person may be revealed.

This is very important. Last night, representatives of various Canadian police forces appeared here and they themselves flagged that concern. Mr. Mike Niebudek of the Canadian Police Association spoke to this question. He said that the identification of those limitations statutorily causes him concern. In his brief he stated:

By prescribing these limitations within law, however, we are essentially flagging for sophisticated criminals the types of crimes that will be demanded of their subjects in order to establish loyalty and preclude infiltration. This may in fact cause greater harm than good, and we have expressed reservations about this approach. We recognize the political realities that apply to this issue, and appreciate that the section has been written in a manner to exclude the specific listing of offences. We would encourage the committee to refrain from considering amendments that would compound this concern.

Therefore, you are not that far removed from some of the police concerns on this. Could you give us your insights on how we could fix this phenomenon, if it were in the mind of senators to fix it?

Mr. Lomer: We are probably light years apart on the resolution of the problem. I say that because I know the Canadian Police Association. The Canadian Police Association would want to get rid of the limitation. I submit that you get rid of the limitation at the peril of losing the constitutionality of the legislation. I do not see how you could give to the police, the authorities or executive literally the power to kill and expect the courts to uphold that in the face of section 7.

That brings me back to my initial point. The only way, in a free and democratic society, that we can give to the police the power to otherwise break the law is incrementally on a case-by-case basis by regulation and legislation. We cannot do that by shifting it all over to them, holding back a few exemptions and a few controls in the executive.

Senator Cools: When you say a case-by-case basis, you are essentially saying that the law officer, the Crown, mostly the Attorney General, will make a decision as required based on the circumstances.

What you are actually proposing is not a result or a response that is legislative or of a statutory framework. What you are saying then, is return to the system that the court condemned, which is largely prerogative.

Mr. Lomer: With respect, I do not think the court condemned it. Frankly, I do not think you would have any problem with the Supreme Court of Canada in Campbell and Shirose if it came up today. That is because you have the regulation that says they can buy and sell drugs. Therefore, you would not have that difficulty.

Let me do it by way of an example.

Senator Cools: Explore the particular point, please. You are saying we should rely on the very ancient powers rather than to go to statutory framework.

Mr. Lomer: It is a statutory framework. For example, in Ontario, we have guidelines that are now in the form of regulation now, I believe, with respect to police chases. That really sort of circumscribed the reasonableness of police activity that might otherwise be dangerous driving, careless driving or breaking other provisions under highway traffic acts. When you have that legislative framework around otherwise potentially criminal behaviour, you authorize it; you legitimize it, as we did when we said you could have undercover officers offering to sell narcotics. It is not an unwieldy system.

The example I was going to use was a case in the early 1980s where some very active and illegal criminal chemists came up with a narcotic that was very similar to a narcotic called ecstasy that we see today, which is MDA. Only this one had an extra "M" in it; it was MMDA. It was not on our prescribed list of narcotics so it was not on any of the schedules. They quickly obtained a sample of it. They said it worked the same way and it is a narcotic.

They went to the Department of Justice and said, "We need to change the regulation." They changed the regulation. The accused were then charged. They said, "Foul. We didn't know about the regulation." The Supreme Court of Canada said, "Well, when you walk that close to the cliff, you better know where the line is. Very clearly, if you are going to be at the edge, you better know what the law is." They made the change by regulation and they convicted them. The Supreme Court upheld the conviction.

You can do it by regulation. If you have an interesting sting operation that you are doing and you are not sure whether it is illegal or not, you go to the law officer and the law officer says, "Let's take it to our justice minister and see if we need to do a regulation." It can be done.

The Chairman: Mr. Lomer, are you suggesting, then, case-by-case on an individual case that is the concern before the police right now or case-by-case building up as in the case of the old common law which was, in effect, ended by the decision in Campbell.

Are you suggesting that this be done and that the police deal with it? There are so many different acts that govern what is legal and what the police may do right now. For example, we have the Navigation Act and the Innkeepers Act. All of these would have to be amended in little ways, occasionally, but on a case-by-case basis.

Mr. Lomer: That is how you build the law, Madam Chair, and that is what Campbell and Shirose would approve of. I want to make that clear. Campbell and Shirose said that if you have a legislative framework that allows that to happen -

The Chairman: But you have to make that legislative framework and it would have to be every little law.

Mr. Lomer: It is not as big a job as you might think. When I asked at this round table with all the officers there, they came up with about eight or nine examples. None of them were particularly controversial. Perhaps they want to change the Innkeepers Act so that they can register under a false name.

Senator Cools: What I think Mr. Lomer is saying is that this bill proposes to delegate the prerogative to the police. He is then saying keep the prerogative in the hands of the minister, the Attorney General or maybe even the Solicitor General, on a case-by-case basis.

Senator Grafstein: No, no. I do not think Mr. Lomer is saying that.

Mr. Lomer: Not in the hands of the minister. It must be by regulation.

Senator Grafstein: What I hear Mr. Lomer saying is that the police should not pursue their activities by their internal system, but there has to be an independent overseer. It does not necessarily have to be the minister. There must be some independence for that oversight that is independent of the police authority itself.

Senator Cools: I did not hear that at all.

Senator Grafstein: Am I hearing that correctly?

Senator Cools: I did not hear that at all.

Senator Joyal: That is another issue.

The Chairman: Let Senator Cools ask her question.

Senator Grafstein: I will step back.

The Chairman: Honourable senators, we will let Senator Cools finish.

Senator Cools: In Canada, there are only three law officers of the Crown. All the prosecutors operate under the law officers of the Crown. The prosecutor is not a law officer of the Crown. He works for the law officer of the Crown who is the Attorney General. There are only three law officers of the Crown currently in Canada. They are the Solicitor General, the Attorney General and the Judge Advocate General.

I am a great believer in the proper exercise and the proper administration of what we call "prerogative powers." As it is, the work of prosecutions and police investigations are governed in part by statute but with many prerogative powers. What I see this bill as doing is delegating a prerogative power, which before resided in the hands of the bosses of all the prosecutors at the very top in the civilian authority, who is the Attorney General of Canada or the attorney general of the province.

What this bill is doing is more or less moving that prerogative power down the road somewhat and handing it over to police officers. I understand that is the source of your objection. I may be wrong; I may be off the wall. I am hearing you say that you would prefer to see it stay on a case-by-case exercise, as prerogative powers should be, by individuals who in the long run you see in a public way. You can challenge them politically, if necessary, for any mistakes, and not bring it down this level down the road to a routine police matter between police officers. I may be wrong, but that is what I understand.

Ms Perkins-McVey: Senator Grafstein spoke about existing tools. I direct you to page 4 of the Canadian Bar Association presentation where we set out an exhaustive list of some of the existing tools that exist currently under the Criminal Code.

In addition, on pages 27 and 28 of our brief, we embark on some analysis of the change between the current section on organized crime and the proposed changes and why we feel that the existing section dealing with criminal organizations should be maintained and that we are in a situation where that legislation is still relatively new. It was Bill C-95. The first arrests have been made under that legislation. The trial in that matter has just about finished and the challenges are still ongoing. I do not believe that the true breadth of that section and the ability to utilize and enforce it has been fully tested.

We must bear in mind that we are not a society that does not have a law in existence. We have one. There are certain safeguards that were put into Bill C-95 as a result of a lot of consultation and as a result of concerns about the constitutionality of that section.

The reason the safeguards that are found in that section are there is to maintain those safeguards, to maintain a framework in those limitations. Let us not lose sight of that and become worried about the fact that we have organized crime and we must solve the problem. We have some tools there now. I want everyone to be aware of that and not lose sight of the fact that we do have the ability to utilize those tools.

To feed on what Senator Cools just raised, that is exactly the problem. If you look at proposed new section 25.1, what we have is the cookie, as I said, where the first part is entirely subjective in the hands of the police only without that external examination, that external overseeing. Second, if you look at the second level, where we authorize the police with the prior approval of a senior officer, someone who is on the same team.

We agree, as indicated by our brief, with the comments made by others around the table - Mr. Lomer, Ms Boisvert, Mr. Trudell. That this is the kind of situation where we would prefer to be back in the circumstances of the status quo, where it is examined on a probative basis case-by-case. If there is a violation, then it can be tested in the courts and can be fully disclosed and examined.

There is discretion and some concern about discretion. However, it does then remove the concerns that are raised by the virtue testing section. I am sure that a copy of this bill was in the hands of the lawyer for whoever the organized crime group was before it was in your hands, and they will know the target exactly. You take away that framework and they do not know where the bar is and perhaps it gives greater safety to law enforcement officers.

Let us turn to the middle section of the cookie: the proposed section 9 of the bill, which is the section that asks only for the authorization in writing. That is not sufficient accountability. That someone from your team is giving you authority in writing, someone who is handing in a report "when feasible" - not immediately, not as soon as practicable, but when feasible. "Feasible" is a very vague term and I do not think it is appropriate to be used in the legislation.

One of the things that we raise as an option is whether, for those types of matters set out in proposed subsection 9, there should be judicial authorization. There should be a judicial body to examine whether this is fit and appropriate in the circumstances.

The other issue we raise is this kind of activity should only be a last resort. It should not be the front line police tool that is used. They should not be given the carte blanche ability to break the law. It should be when all other avenues have tried and failed. Or it could apply to a circumstance in which through your investigation you have examined what is going on, who you are dealing with, and you are certain the only way you will infiltrate is to do X, Y and Z and you should have someone check this out. In our view, this should be judicial review of that.

What is interesting - and I hope you do hear someone from the judiciary - is the reports that we have heard are that they do not want to touch that. They do not want to be seen to be supporting the breaking of the rule of law. That should tell you something. If the judges do not want to support the breaking of laws, then why should honourable senators or the community at large support that?

Those are the points that feed on what Mr. Lomer said and what Senator Cools said. Those are important points to consider.

Senator Cools: Obviously there is a problem.

Senator Joyal: I feel that our meeting this morning has finally come to the end of the funnel; we are looking at the constitutionality of this bill. I would like to concentrate on two aspects of the constitutionality of this bill in relation to section 1 of the Charter. The starting principle, for me, has been stated in the case of Mack in December 1988. I will quote it in French and I think it is easy to translate.

[Translation]

One value that is deeply rooted in our democratic system is that the end does not justify the means.

[English]

The fundamental value of our democratic system is that the ends do not justify the means. In other words, when the court interprets section 1, this is an element of the test of a free and democratic society.

If we go to Campbell and Shirose, I will read paragraph 41 of the judgment.

[Translation]

In Canada, it is accepted that it is up to Parliament to decide when, as part of law enforcement, the end justifies means that would normally be considered unlawful.

[English]

We come back to the principle stated earlier on.

[Translation]

As Justice Dickson (later Chief Justice) said in Perka v. The Queen:

And I continue beyond the quote:

Although it is true that Justice Dickson was not referring to the issue of an unlawful act committed by the police in this case, a general justification on grounds of enforcing the law would be contrary to the earlier mentioned fundamental constitutional principles.

[English]

When you take proposed section 25.1(2) of the bill it says:

It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.

Here, as I read it, it is exactly the contrary of the paragraph of Campbell and Shirose, which says that you cannot get a general justification of implementation of the law to be authorized to commit criminal offence. Here, the way that the principle is stated - unless I am mistaken and I would like to have your comment on this - it could be challenged on the basis that this is not acceptable in a free and democratic society the way it has been interpreted by the Supreme Court.

That is my first question.

[Translation]

Ms. Boisvert: I spoke about rhetoric in my presentation. There are few rules of law in this subsection. I read it rather as an expression of an opinion or as a form of argument that could be put forward in a discussion of constitutionality, or general immunity granted. Parliament says that in its opinion, it is in the public interest for the police to have means. The limits on the rule of law will rest with the Supreme Court if there is a constitutional dispute. My understanding of this is that the rule of law in Canada requires that the police be above the law. That is my reading of this subsection. I am not convinced that in a constitutional state, the police need to be above the law.

[English]

Ms Perkins-McVey: The comment that I would make reading the clause is two-fold. First, it is a "motherhood" type of statement obviously. I recall previous drafts of this clause having a specific limited justification. One of the concerns I think we raise is its broad base. That is the very concern of constitutionality, namely, the broad base of the justification. Previous drafts said it was a limited justification. That is lacking in the entire bill. It is the lack of framework, the lack of controls and the lack of accountability.

Proposed subsection (2) has intentionally removed that and it is contrary to the drafting of subsection 10 as it pertains to agents. Looking at "agents," proposed subsection (10) indicates "at their direction," which suggests a closer temporal time in terms of when the agent is receiving his direction or receiving his instructions and his authority.

Under subsection (2), it simply indicates "at their direction." Is that at their direction three weeks ago? Is it at their direction a year ago? There is not that same temporalness in time. There is a real concern about the rule of law and the fact that subsection (1) of the Charter may be a real test.

Senator Cools: Ms Perkins-McVey said something that needs to be clarified for the committee. She referred to previous drafts of this bill. I think the committee should know what drafts of the bill she is talking about.

The Chairman: We are only speaking of the one that we have before us.

Senator Cools: Could you share with the committee what previous drafts there were and how you came to see them?

Ms Perkins-McVey: A consultation draft was provided to various stakeholders for review. Concerns were raised at that time by organizations such as the Canadian Bar Association, as well some of the law enforcement organizations because they, too, are concerned about the lack of limitations and lack of structure.

The draft that we looked at clearly had that limited justification. That is what I am referring to and I am suggesting this should be amended to be included in this bill.

Mr. Trudell: You make a very valid point. Proposed subsection 2 invites us to think about how this would hold up under a section 1 examination.

That was our point earlier. Ms Boisvert said, "What do the police need? What were the 59 examples? What is it that they need? That would be litigated under section 1. For instance, in the Campbell and Shirose case, the regulation said you can possess but you cannot sell. As a result of that case, now they can sell. That problem is settled.

In other words, if you are looking at section 1, I can see evidence being called in before a court to show where the police are hampered. You hear nothing in this committee except anecdotal evidence that 59 infiltrations went down the flue. Proposed section 2 invites examination at this committee.

Senator Joyal: I should like to continue on this same issue of the rule of law and the constitutionality of this bill of proposed section 25. I would like to refer to the case of last week, the Mentuck case. I would like to give you the paragraph to which I wish to refer in English and French. It seems to me that in the interpretation, the Campbell and Shirose case raises the limitation that is put on the police forces when they are authorized. We must add another element to the specific authorization. The Mentuck judgment, in paragraph 50 states: A fundamental belief pervades our political and legal system that the police should remain under civilian control and supervision by our democratically elected officials; our country is not a police state." That is a very strong statement.

My interpretation of this is as follows. Proposed section 25.3 says, "A competent authority may designate public officers, or groups of public officers Y" Who is the competent authority? It is the Solicitor General of Canada or the Solicitor General in the province or a minister that has a responsibility to answer for an act of Parliament.

The problem I have with proposed subsection 3 is that it designates "groups" of public officers - in other words, a class of people. When you designate a class of people, the civilian control that is interpreted or represented by the Solicitor General - be it of a province or the federal Solicitor General - becomes so loose that the test that Mentuck put last week is diluted to a point where there is no more civilian control. The authorization is not individualized in a specific domain. Everyone involved in a drug squad, for instance, is authorized to commit acts that would be otherwise criminal offences.

Considering the test that the court has put forward in Mentuck - namely, that the police must be under civilian control and its actions must be, at a point in time, publicly accessible - the test of what is reasonable and acceptable in a free and democratic society means that it does not meet the test of civilian control, at least when it designates groups of public officers. We cannot say, "I give the authorization to officer X, Y, Z," which is a control because you authorize a specific person. However, when you authorize a class of person, all the squads involved in drug investigations, for example, you are going beyond the civilian control that was referred to in the Mentuck judgment.

Ms Perkins-McVey: I agree with your rationale. That is a very good point. It is exactly those lack of controls. It is important that this decision be read in light of the legislation and the analysis that honourable senators give this bill should be in light of that case.

Clearly, the lack of control by anyone other than the police is one of the very real concerns. I agree that that lack of civilian control will cause constitutional problems. Couple that with the lack of accountability as it pertains to the reporting requirements and the limitations that are set out on the reporting requirements. As Mr. Trudell indicated, the basket clause, contrary to the public interest, dilutes all of the accountability that the bill is trying to establish by the reporting requirements.

There is another concern in that in the very largest part of the cookie - that subjective section to which I referred - there is no requirement of reporting as it pertains to that. Where is your public accountability then? Where is any control let alone civilian control?

If you look at proposed subsection (3) and couple that with the lack of accountability in other clauses of the bill and there is a real constitutional problem.

Mr. Lomer: It is potentially much more difficult than that. About 12 years ago, I acted as policy adviser for the Ontario Solicitor General. The pre-eminent issue at the time was high-speed police chases. Without the designation and authorization to virtually every driver of every squad car in Toronto, they could not engage in these chases. The net result, as I read the legislation, is that there would be incredible pressure on the political competent authority to designate and authorize virtually the whole police service. Once you do that, you have no civilian control. It is gone.

[Translation]

Ms. Boisvert: I completely agree with you. Let us compare these provisions to one of the first things struck down by the Supreme Court, namely the writs of assistance in which police officers were designated and given a form of blanket search warrant. It was not a matter of committing offences, but rather of entering with a search warrant, signed like a blank cheque. It did not pass the constitutional test. What we have here is much broader than writs of assistance. My view is that we clearly have serious problems.

[English]

Senator Joyal: Another element in relation to the constitutionality of this provision is that the kind of control that is put into place in proposed section 25. The representative of the police forces and the minister said that he designates someone and then someone else designates someone, and so forth. The control is very loose on that basis.

At the end of the year, the report is essentially an information report. It is not a control in the course of the exercise of the authorization. In the Southam case, the court established some essential criteria on the reasonableness and on the nature of the third party that must review it. It should be a person who is "neutral and impartial." Those are criteria that have already been stated by the Supreme Court.

When we are told that at the end of the year, the Solicitor General receives a report from the commissioner of the RCMP, there is no control. He is being informed; that is right. In fact, the kind of control to me does not meet the test that the Supreme Court has already put in the context of a specific act that goes outside of the law. The paragraph in proposed section 25, which deals with the annual report, would not meet that other test of what is acceptable in a free and democratic society to maintain the real control of the civilian authority.

Mr. Trudell: I agree with you, senator. You would get a statistical report. We had 59 infiltration cases where we had to break the law. Proposed section 25.3 (2) takes out any specific information because, as has been said earlier, there are too many escape ramps. You are correct.

There would be no meaningful report. Therefore, there would be no accountability in relation to the use of these provisions.

Previously, some police officers may have said to you that they have experience; they know how to infiltrate the police; and they have training. That argument has been made previously. There is no standard training for infiltration and what they can do across the country. Quebec may have some experience because of the bikers, but Manitoba, Saskatchewan and New Brunswick may not.

There is no standard accountability. There are no standard provisions for accountability throughout this bill. That must happen if this cookie goes beyond this committee.

The Chairman: It rather surprises me that with a group of legal people in front of me that no one has said that the courts are the ultimate civilian control.

Mr. Lomer: You do not like the control.

The Chairman: The judicial control is the ultimate forum. They throw the case out.

Ms Perkins-McVey: What if this is never revealed? What if there is not a charge laid? What if the police break the law, do all these things in the course of an investigation that goes nowhere? Should we be allowing this kind of activity?

Ms Boisvert: There is a difference in degree. In Quebec, the RCMP has not been charged with money laundering. They did it for years.

Senator Moore: I would like to ask the witnesses a question with respect to proposed new clause 467.11 (1) on page 30 of the bill. It reads as follows:

Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence ...

I heard the example of a farmer in Quebec whose field was being used to grow marijuana. His land was being used without his knowledge and against his will. How is he caught? You indicate that he would be, and I do not understand that.

The witness indicated that that innocent farmer would be caught by this proposed clause, and I would like her to explain that to me.

Ms Boisvert: Usually, the farmer knows what is there, but does not do anything.

Senator Moore: He might know it, but if he is not doing it wilfully, some gang is threatening him.

Ms Boisvert: Not wilfully, but knowingly.

Senator Moore: He might know what is going on in his field, but he is not a willing participant in that crime. How is he caught by that?

Ms Perkins-McVey: Look at the definition of facilitation. Under proposed section 467.1 (2) states that "... facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed."

The farmer has been given as an example of a facilitator by the use of the soil in his field. It is not required that he has knowledge of a particular offence that he is facilitating?

The Chairman: Is duress not a defence?

Ms Perkins-McVey: Is it under duress? Duress has a specific legal connotation. You almost have to have a gun to your head in order to make out a duress defence.

Senator Joyal: It is very strong.

Ms Perkins-McVey: It does not necessarily require duress.

Senator Moore: I do not think that a court of law would find that farmer guilty, I am sorry. I think that is a real stretch. I could not see that happening.

Ms Perkins-McVey: If, by legislation, it is possible to catch non-criminal activity by virtue of the definition, then are we not dealing with a problem with a piece of legislation that would be caught under section 7 as being unconstitutional for overbreadth? That is the kind of rationale and analysis that was set out in Sharpe and other recent cases.

Senator Moore: It still goes back to the fact that he is supposed to be doing something for the purpose of contributing or facilitating. He does not have that purpose. That is my point.

The Chairman: I thank the witnesses for coming before us this morning and for staying so long. We must rise at 1:30 and we have one more matter to cover before we go.

We have before us a draft report arising out of our meeting with Mr. Kingsley the other day. We really do not have time to edit it ourselves and see if it agrees with what happened. I will ask you to take it home, keep it confidential and if you have any changes or amendments to make to it, get them to me by Monday morning.

This committee is now adjourned.