Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence
OTTAWA, Wednesday, November 28, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-24, an act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, met this day at 3:42 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: We are continuing 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.
We are beginning today with a panel starting with representatives from the Montreal police force, the Ontario Provincial Police, the Organized Crime Agency of B.C., and Mr. Guy Ouellette, a specialist in criminalized biker gangs.
We will begin with Mr. St-Laurent.
[Translation]
Mr. Marc St-Laurent, Deputy Chief, Investigations Division, Montreal Urban Community Police Department: With me today is Denis Asselin, Counsel, Deputy Chief and Head of the Legal Affairs Division.
On October 16, 2000, we appeared before the House of Commons Subcommittee on Organized Crime to tell the members that Bill C-95, which was passed on May 2, 1997, had proven difficult to enforce and largely ineffective in fighting organized crime. In May 2001, we delivered the same message to the members of the House of Commons Standing Committee on Justice and Human Rights. We thank you for asking us to present our comments on a bill that is very important to us.
Our disappointment with Bill C-95 is matched by our delight with Bill C-24. We are therefore enthusiastic and confident about the future, because this bill to fight organized crime at last meets our expectations. We support the amendments proposed in the bill, in particular the new definitions of "criminal organization" and "criminal organization offence." We also support, needless to say, the measures designed to protect justice system participants and provide immunity for peace officers. We believe that the new rules governing the seizure and forfeiture of offence-related property and proceeds of crime are better than the current rules.
We will take advantage of this opportunity today to focus on some of the highlights of Bill C-24 and explain to you the impact they will have on policing. First of all, I will discuss the impact of the new definition of "criminal organization."
Under the law as it currently stands, it is very difficult to prove that a criminal organization exists, even where that group comprises members of a motorcycle gang that openly portrays itself as a criminal organization. The current definition of "gang" requires evidence of what we refer to as the "three and five" rule; in other words, we have to prove that a gang has at least five members, some of whom committed in the previous five years a series of offences subject to imprisonment for at least five years. We also have to prove that the gang's primary activity is committing crimes.
Unfortunately for law enforcement agencies, criminal organizations were quick to learn that they could get around that definition by setting up satellite groups and having subordinate groups commit crimes for them. Under the new definition of "criminal organization" in Bill C-24, all we will have to do is prove the existence of a group of at least three people - not five - whose main objectives include committing or facilitating the commission of crimes for the purpose of realizing gain. This new definition will enable us to reach not only the individuals throughout the organization who actually commit the crimes, but all the leaders who work in the shadows to orchestrate the crimes and all the sympathizers who gravitate toward them and indirectly support their activities.
With respect to the three new offences, Bill C-24 creates three new offences, which, as Minister McLellan stated when she tabled the bill, all target those who participate directly or indirectly in the activities of a criminal organization.
The organized crime specialists at the MUCPD believe they will be able to deal a serious blow to criminal organizations once these three offences are created. They are particularly happy with clause 467.11 dealing with participation in or contributions to the activities of a criminal organization. Everyone views that section as the keystone of Bill C-24 and considers it a good replacement for the participation offence added to the Criminal Code under Bill C-95.
Take, for example, an operation that we conducted, operation "Amorce." The goal of that investigation, which was conducted by the MUCPD's organized crime squad, was to dismantle the Rock Machine cell that specialized in narcotics trafficking; the investigation took a year and cost $2.5 million. Some members of the gang were prosecuted, largely on the strength of testimony from informant Peter Paradis. Eight gang members were even charged with criminal organization offences, but only four were convicted. Two were acquitted because the Crown failed to show that they knew that other members of their group had, in the previous five years, committed at least two drug-trafficking offences. The other two were also acquitted, because the evidence showed that they had both been involved in trafficking less than three kilograms of marijuana, an offence subject to only three years in prison, not five. Of the four people acquitted on charges of committing a criminal organization offence, three are still doing business with the Rock Machine, now the Bandidos, and the fourth is being scouted by the Nomades.
If the trial were to be repeated under the provisions of Bill C-24, chances are that all eight would be convicted.
Despite the extensive resources allocated to operation "Amorce," five highly-placed members of the Rock Machine faced no charges, even though we know for certain that they ran all the drug trafficking. Today, they are free and more active than ever. Once again, if the trials were to be repeated, at least four of the members could be charged with the new offence of participation established in Bill C-24 and would probably be convicted.
The evidence would show that through their actions they "contributed to the activities" of the Rock Machine "to facilitate trafficking in narcotics" by members of that organization, as provided for in the new offence of participation.
We have many other examples that illustrate the benefits of the new provisions. When the new offence of participation comes into force, we will be able to charge many people who are drawn to criminal organizations and contribute to their activities: for example, public servants who provide them with confidential addresses (if you have been following the news, this has happened in Quebec); electricians who secretly install the wiring for a dozen hydroponic greenhouses, knowing full well they will be used to grow marijuana; and electronics experts who inspect the places where meetings are held to ensure that the police have not installed any listening devices. All these people who facilitate the activities of criminal organizations could be covered by this new offence.
With respect to immunity for peace officers, as you know, in 1999, the Supreme Court of Canada reiterated in Campbell and Shirose that the rule of law is one of the fundamental and organizing principles of the Constitution and that a crucial element of the rule of law is that there be "one law for all." The Supreme Court said police officers are not above the law it is their duty to enforce. It went on to say, however, that police officers should be granted some form of immunity and that Parliament would have to amend the law accordingly. Prior to that ruling, police officers had always believed they enjoyed immunity that allowed them to commit acts or omissions provided they were not offensive to society. The Supreme Court did not challenge that fact, because while it deemed it unacceptable for police officers to conduct themselves in such a way in the course of their investigations, it did not call on Parliament to set parameters for them.
Truth be told, Bill C-24 simply gives back to police officers the tools they were already using without any problem before the decision in Campbell and Shirose. The part of the bill that grants relative immunity to peace officers is very controversial. We understand that the proposed amendments give many people a start.
Was it necessary to stipulate that police officers cannot commit sexual assault or murder? We did not need this legislative prohibition. No matter the investigation, it would never enter our mind to commit that kind of offence. We, too, believe that the end does not justify the means. We were shocked ourselves that Parliament felt it necessary to impose such limits, but we accept them.
We are totally opposed to the suggestion put forward by some people to include in the bill a mechanism for judicial authorization. It is very important for us to tell you where we stand on this issue. It is important to understand that in most cases, police officers do not know ahead of time the exact nature of the actions they will have to take in the course of their investigations and do not know when or where those actions might be taken. On the contrary, police officers usually encounter unexpected, urgent situations. We therefore believe there is no need to establish a judicial procedure that would apply only in unusual circumstances.
Our belief is that the controls already in the bill are quite enough to protect people from police abuse. The immunity granted police officers under the Controlled Drugs and Substances Act is a very telling precedent.
Since that act came into force in 1997, police officers have been allowed to carry narcotics and sell them or offer them for sale. Despite that immunity, our policy at the MUCPD has always been to refrain from engaging in such acts except where absolutely necessary. We have used the immunity provisions of the act only a dozen times since 1997.
Bill C-24 does not allow all police officers to commit unlawful acts as they see fit. Only police officers designated by the Minister of Public Security who are acting in a specific investigation and persons acting at their direction are permitted to do so and may only do so if they have reasonable grounds for believing that their actions are fair and commensurate in the circumstances and there is no acceptable alternative. These restrictions are similar to the restrictions in the Controlled Drugs and Substances Act.
The MUCPD has only a dozen officers out of a total of 4,000 who are authorized to engage in such activities. The vast majority of our police officers will never commit an offence. Offences are committed only in the course of investigations by undercover officers who have to prove their credibility to criminals to avoid being discovered.
The MUCPD never asks its informers to commit crimes, even though the majority of them already have a criminal record, a lengthy one in some cases.
Bill C-24 contains the same controls as the Controlled Drugs and Substances Act and then some. Following a recommendation from the Standing Committee on Justice and Human Rights, Bill C-24 gives the Minister of Public Security in each province the authority to impose conditions on designated police officers in order to limit the duration and scope of their activities and the offences they might commit. Bill C-24 states that a committee of the Senate and the House of Commons will review the scope of the new immunity within three years of the coming into force of the act.
That being said, we must remember that in addition to the up-front controls provided for in Bill C-24, any actions taken by police officers are subject to review after the fact since they are disclosed to the Crown prosecutor and defence counsel in the event of a trial under the standard rules governing the disclosure of evidence.
If the proportionality test is not met, the consequences will be very serious, ranging from a stay of proceedings and the rejection of the evidence to criminal charges against the police officers at fault. Furthermore, in Quebec, under the new Police Act which came into force on June 16, 2000, police officers who commit an offence without justification are almost certain to be dismissed. The actions of the police officer may also lead to disciplinary action under the code of conduct.
Given the number of people who will be keeping tabs, we firmly believe that police officers would be mad to abuse their immunity under the set. We also believe that these controls are a better option than judicial authorization. Moreover, they give police officers flexibility that does not mesh readily with the drafting of informations.
In conclusion, we are very happy with Bill C-24. This bill is a big step in the right direction, although we see it more as a first step. In our view, other key legislative measures are needed.
A case in point is the disclosure of evidence rule. As it now stands, some judgments require the Crown prosecutor to provide the accused with a paper copy of all documents in his or her possession. For your information, in Quebec, as a result of Operation "spring 2001" targeting the Hells Angels, the Nomades, as well as their farm club, the Rockers, 91 accused belonged to those two groups. We had to submit 1,000 compact discs on disclosure; each disc held between 10,000 and 15,000 copies. If you work it out, this represents millions of copies which would have had to have been photocopied and edited, since any names would have had to be blocked out. That gives you an idea of the work involved. In large-scale operations or inquiries which last two or three years, electronic disclosure is a must. That should be the second stage in the disclosure process.
The other element we feel is important is the reversal of the burden of proof where applications for the forfeiture of proceeds of crime are made. We all know how difficult and costly it is to prove that something is the proceed of a crime, particularly because organized crime members often use dummy corporations in transactions involving real estate and goods. Would it not make sense to require organized crime members to reveal the source of their goods, if they have been found guilty of being an organized crime member? Those are the two recommendations we would like a future bill to incorporate.
[English]
The Chairman: Our next witness is Mr. Frank Ryder from the Ontario Provincial Police.
Mr. Frank Ryder, Detective, Chief Superintendent, Ontario Provincial Police: Thank you for the opportunity to address this committee and present the views of the Ontario Provincial Police on this very important legislation.
The Ontario Provincial Police, under the direction of Commissioner Gwen Boniface, has taken a leadership role in the fight against organized crime. Commissioner Boniface restructured her executive command and created the position of Provincial Commander, Investigation, Organized Crime. She also created the organized crime section within Investigation Bureau, which reflects our force's view that the dismantling of organized crime groups is the number one priority to keep Ontario safe.
The organized crime section comprises highly skilled investigators from the OPP and police officers from 18 municipal police services. The section is a model of effective policing partnerships. I am pleased to introduce Detective Superintendent Dennis Moore, the director of that unit, sitting to my right. Following my presentation, he and I would be pleased to entertain your questions.
I know my time is short. To prepare for this presentation, I secured and reviewed the transcripts from your committee hearings of last Wednesday. On that day, the committee heard representations from RCMP Commissioner Zaccardelli, Chief Julian Fantino, the Canadian Police Association and the Canadian Association of Chiefs of Police.
The Ontario Provincial Police supports their comments and views. We strongly support the proposed legislation, Bill C-24.
I will concentrate my remarks on the legislative response to Campbell and Shirose. One the most effective techniques to fight organized crime is the use of undercover officers to infiltrate criminal organizations. The Supreme Court of Canada decision in Campbell and Shirose impacted on the ability of our undercover police officers to safely operate as members or associates of these organizations. The Supreme Court ruled that police officers are not agents of the Crown and therefore do not benefit from Crown immunity unless specifically exempted by statute.
The Supreme Court of Canada stated that if it is in the public interest for immunity to be extended to the police, it should be left up to Parliament to set out the nature and scope of that immunity. Parliament has responded with provisions set out in Bill C-24.
It is a matter of public interest that law enforcement officers are able to carry out their duties effectively. In an era of complex and organized criminal activity, this has required techniques that may involve purely technical breaches of the law, where no harm is caused to an innocent third party. Campbell and Shirose rendered these kinds of investigative techniques as beyond the protection of law, thus putting effective law enforcement, especially in relation to organized crime, at risk.
Parliament has recognized that law enforcement officers require a clear and limited exemption from criminal liability and that this must be set out in law. The Criminal Code of Canada already has provisions under a heading titled "Protection of Persons Administering and Enforcing the Law." Previous legislators recognized that those who do administer and enforce the law require protection under certain circumstances. There are exceptions for police carrying out their duties that distinguishes them from ordinary citizens who engage in the same behaviour. The legal distinction reflects a public recognition that effective law enforcement sometimes requires acts that would not be justified if an ordinary person were to do them.
It is important to look at some of the Criminal Code sections that have been in force for several years. Section 25(1) states:
Every one who is required or authorized by law to do anything in the administration or enforcement of the law...
(b) as a peace officer...
...is, if he acts on reasonable grounds, justified in doing what is required or authorized to do and in using as much force as is necessary for that purpose.
Section 25(3) states:
Subject to subsections (4) and (5), a person is not justi fied for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the pres ervation of any one under that person's protection from death or grievous bodily harm.
Within the same area of the Criminal Code, there is also protection afforded to everyone under the following circumstances. Section 27 states:
Every one is justified in using as much force as is re asonably necessary
(a) to prevent the commission of an offence...
I will not read the rest the section. It basically provides what those circumstances are.
I have taken the time to quote from those sections to highlight that in all instances there is reference to reasonableness and more importantly, you hear the term "justified." It may be semantics, but nowhere do you hear the word "immunity."
Also, there does not seem to be the notion that law enforcement officers or, in fact, everyone who administers or enforces the law under the reasonable circumstances laid out in those current Criminal Code sections were committing illegal acts or breaking the law. Those circumstances include justification of taking a life or causing grievous bodily harm when law enforcement officers are protecting their own life or saving another. Even under that most serious circumstance, there is no assumption or statement that a law enforcement officer has committed an illegal act and requires immunity.
The legislators have correctly, in my view, included the provisions to address Campbell and Shirose within the same area of the code that affords protection for persons administering and enforcing the law.
Honourable senators, our law enforcement officers, particularly our undercover officers, require that protection. I feel it is most unfortunate that the controversy surrounding these provisions swirls around the thought that police officers will be uncontrollably committing criminal acts and will be immune from prosecution. That will simply not occur.
I have discussed this issue with many police leaders and with our rank and file members. We do not want immunity. We do not want to commit criminal acts. It is against our very nature. We are police officers who are sworn to uphold the law.
What we do require is justification to continue with proven and successful undercover police techniques that are the most effective way to infiltrate criminal groups.
Bill C-24 contains appropriate accountability provisions to ensure that there will be no abuses, and if there are abuses, law enforcement officers will not be afforded the protection provided by the new legislative amendments. Police agencies are highly regulated and subject to accountability at many levels, including the courts, which hold the police to a very high standard of behaviour.
I will conclude by supporting the recommendation made last week by Chief Julian Fantino that detailed training be provided, potentially through a comprehensive package developed in partnership with the CACP and the Department of Justice. The training package would outline in detail the steps to be taken to ensure compliance and accountability and more importantly, a consistent interpretation of the new legislation.
I thank you for the opportunity to express my views on behalf of the OPP.
Mr. Mike Ryan, Inspector, Organized Crime Agency of B.C.: Thank you for the opportunity to appear today. I, too, have a prepared text and will make a copy available at the end of today.
The Organized Crime Agency of British Columbia feels that Bill C-24 represents an opportunity for law enforcement in Canada to significantly advance prosecutions in regard to organized crime groups.
The broadening of the definition of enterprise crime to include all indictable offences under the Criminal Code and any act of the federal Parliament provides a significant opportunity for law enforcement to seize the proceeds of crime from the broadest range of profit-motivated offences engaged in by organized crime groups. Without the expansion of this definition, the proceeds of crime from offences such as forging or falsifying a credit card cannot be seized.
Earlier this year, my agency seized an illegal credit card factory that held at risk a total of $330 million in credit potential. The proceeds of crime from this offence could not be seized due to the current restricted definition.
Expanding the definition of offence-related property will also be of significant assistance. As such, seizures from a broader range of offences will be a significant deterrent to prevent organized crime groups from investing in profit-motivated crimes.
Currently, under the Controlled Drugs and Substances Act, $1 million in a bank account that can be proven to be assembled for the purposes of concluding a drug deal can be seized. If the $1 million is proved to have been assembled for the purposes of wash trading in securities, acquiring illegal weapons or explosives, or financing any other non-drug offence, it cannot be seized.
Increasing sentences - in particular for intimidation of family and relatives - and the new offence of intimidation of criminal justice system participants and journalists, is also very welcome. Currently, in British Columbia, one such case is before the courts as a result of the threatening of a prosecutor after the successful prosecution of members of the Hells Angels motorcycle club. Intimidation of a close friend or associate, however, who is not a member of the included group, will not be caught by this new offence.
The new definition of criminal organization, reduced in number to three in or outside Canada, ensures that one participant cannot operate from the other side of an international boundary and have the organization enjoy impunity from the law. It also ensures that where the group and persons under the Criminal Code may be real or corporate persons and has as one of its main objectives the facilitation of one or more of the serious offences, Canadian law enforcement will have the reach to attack complex schemes that have developed for criminal and terrorist purposes.
It was equally important to ensure that the range of offences for which the participation of a criminal offence applies is given full measure and consideration against those to which organized crimes migrate. The law enforcement community found it incredible that offences concerning illegal gambling - a signature offence of organized crime - were not included in the 1997 organized crime amendments to the Criminal Code. The inclusion of such profit-motivated offences by regulation will solve this problem.
This year, my agency successfully prosecuted an illegal gaming operation that operated over the Internet, obtaining a fine of $100,000 and a forfeiture of $6 million. The cash flow through this company had ranged from U.S. $60 to $80 million per month. In this case, neither the existing definition of organized crime nor offence related property applied.
Not without controversy, clause 24 is an attempt to address the problem by law enforcement created by Campbell and Shirose. Put briefly, that case states that the police are not exempt from criminal acts committed during the course of a bona fide investigation. The debate has developed around the question of whether the police should be given the authorization to break certain laws. The proper question is whether the evidence derived from a technical breach of the law committed by well-intended police officers should be admissible in court.
Prior to Campbell and Shirose, the law enforcement officers were permitted such technical breaches, based upon the absence of a culpable state of mind. It is necessary to point out that then, as now, law enforcements officers and the management of their forces are civilly liable for any harm or damage that they cause, not only to innocent parties but also to the suspects themselves. Damage to property of the suspects caused either deliberately during drug raids or inadvertently to third parties during the course of more usual enforcement action is routinely absorbed by the police agency responsible.
Law enforcement agencies currently seek contracts with other parties to obtain goods and services to advance an investigation. In those instances, a third party assesses the risk and, where the consequences of assisting the police have a high premium, the interests of the third party are indemnified by the police.
Assessing and responding to risk is a constant reality that is being managed in all areas of law enforcement today. The authorizations contemplated by Bill C-24 do not exceed in any real way those police third party agreements. The difference is that in the rapidly moving world of organized crime the police do not always have the time to negotiate the terms required by those third parties. For example, if an undercover officer knew that next Friday he or she would be given a stolen credit card by a member of an organized crime group and instructed to obtain a certain item, it could be pre-arranged with a supplier of that item for the officer to appear to complete the transaction as directed. Where the undercover operator is given the stolen credit card unexpectedly and instructed to act immediately, there is no time to seek the supplier's cooperation. Without the authorization in Bill C-24, the evidence obtained in the second scenario is inadmissible.
The effect of Campbell and Shirose reaches far beyond these examples. It prevents long-term effective investigations from developing to fruition. There is a concern that evidence will be admissible if police officers simply learn that some event will occur. Where the location of stolen or smuggled property is identified but not yet delivered to its final destination, the police must act prematurely interdicting couriers as opposed to organizers. Just having the knowledge of the location of the contraband places the police at risk of being accessories to an offence after they have learned where the property is located.
It should be pointed out as well that the 1997 amendments contained several provisions that allowed police officers to traffic and purchase illegal drugs to counter drug dealing. Other provisions in the Criminal Code allow police to launder money, to be in possession of proceeds of crime and to possess restricted or prohibited weapons for the purposes of an investigation. These exemptions are already in Canadian law and have existed for some time. They permit law enforcement officers to do certain things that are technically illegal. These exemptions have proven their worth in the battle against organized crime and without incident or suggestion of abuse.
It may be suggested that the narrow list of offences, which are clearly prohibited, will cause organized crime groups to virtue test undercover police officers knowing that these prohibited acts simply cannot be committed. This type of testing has always occurred and no legislation will change that fact. Trained professional police officers have and will continue to avoid these very serious breaches of the law.
In terms of accountability, it will be necessary for government to ensure that a police training standard is in place and that the designations and reporting requirements are adhered to. Police accountability will be assured by continuing civil liability and, most importantly, the need for law enforcement in Canada to continue to strive to retain the respect and trust of the communities that they serve.
Any time there are exceptions or exclusions to the tools available to law enforcement, it is inevitable they will be identified and capitalized upon by organized crime. The law enforcement tools provided in this legislation will remove, to some degree, those opportunities.
[Translation]
Mr. Guy Ouellette, Specialist in Criminalized Biker Gangs: Members of the committee, I will be speaking in my own name today. I was a police officer with the Sûreté du Québec for the last 32 years. I joined the ranks at the age of 17. But I had to leave because I had been on the force for 32 years. Shortly after my departure, it was decided that officers only needed to retire after 35 years.
I would like to begin by thanking you for inviting me to appear before your committee. I would like to point out two people who are here: Ms Josée-Anne Desrochers, the mother of Daniel Desrochers, who died in a biker gang war in Quebec in August 1995, and Ms Michèle Laforest, the mother of Francis Laforest, who also died in a biker gang war in Quebec in October 2000. She is accompanied by her other son.
I will not repeat what my colleagues said. For police forces, Bill C-24 speaks out loud and clear on the technical level. As an officer who has worked in the field and who has spoken as an expert witness on organized crime and biker gangs throughout Canada, I would say that Bill C-24 is a new tool. Following Bill C-95, Bill C-24 enables us to fight criminalized biker gangs more efficiently. But we must not delude ourselves into thinking that this tool is the solution to all the problems facing the police.
Under the disclosure of evidence, we have to tell members of organized crime how we went about arresting them, before we can charge them. So they will make some adjustments on their side. This has already started since the Spring 2001 Operation in Quebec. Members of motorcycle gangs are no longer walking around wearing their colours, that is the patch badges whereby we recognize them. A number of the Hells Angels buildings or affiliated clubs are for sale already. People are already starting to comply with clause 467.11 as regards participation in activities of criminal organizations.
In May 1997, when you passed Bill C-95, 21 days later the last chapter of the Hells Angels in Quebec, the South chapter was established. It was based in Saint-Basile-le-Grand. Why was that? This chapter was formed following the three-five rule, which Mr. St-Laurent explained to you. It was composed of nine members of the Hells Angels who had not been convicted in the last five years. As a result, they did not come under the provisions of Bill C-95. Since August 2000, the members of motorcycle gangs have been preparing their response, or their adjustment to Bill C-24.
As I was saying, in Quebec, they are no longer wearing their colours. As soon as they cross the river into Ontario or British Columbia, they wear their colours proudly, because this is a way of indicating their presence to people. They say that there was such a lot of media coverage that people have developed a sort of psychosis. Police forces are there to protect people's lives and to make them feel safe and secure.
New clause 25 allows us to get into these criminal organizations with respect to the commission of certain indictable offences. The first thing we are asked to do is commit a crime. We are recruited on the basis of criminal activities, hence the difficulty for the police to infiltrate these organizations in this way. We have to go with turncoats, sources and informers, except that we cannot start at the bottom of the pyramid, because that runs counter to our training, our conscience and particularly our mission.
Clause 25 in Bill C-24 will give us certain tools that we will adapt over the years.
There are provisions regarding clause 25 which provide some guidelines for the work of the police. Fundamentally, the objective is to keep people safe and secure. That is very important.
It is utopian to think that with Operation Spring 2001, we dealt with all the problems in Quebec on March 28. Many statements were made by politicians and other individuals to the effect that some 125, 130 or 140 Hells Angels were already in prison. I think this is utopian, because there are 107 of them with colours. There cannot be 140 members in prison, because 26 of the 107 were arrested during Spring 2001, and 31 out of 51 members of affiliated clubs were detained. So we are talking about one quarter of the total number of motorcycle gang members.
They could not get drugs on the street for three days, just enough time to change the leaders, to rework the organization chart and to bring back to Montreal members from Trois-Rivières, the South chapter or other chapters to continue control activities.
We need Bill C-24 to protect juries and to deal with the intimidation of people in the justice system. As of December, 18 murder and conspiracy to commit murder trials will begin. They will be heard by Mr. Justice Boilard, at the courthouse in Gouin or Montreal. There will also be the trial of Maurice Boucher for the murder of two prison guards. Mr. Boucher's trial and 13 other trials will be held in March. There are activities going on this weekend regarding members of motorcycle gangs. If the trend continues and if our information is correct, the Bandidos are coming to Canada.
The Bandidos should be admitted officially into the international brotherhood. Once they arrive officially, they will be able to open up various chapters in other provinces, because there are ten provinces in Canada, and it is not true that these things happen only in Quebec. I was telling some of my colleague that to my great surprise I saw the president of the Nomades of Ottawa in a store on Wellington Street, very close to here. He has just opened a business on Wellington Street. I went to speak to him. I have been doing that all my life. He was very surprised, because I told him that I was coming to meet with you today, and that we would be ensuring that Bill C-24 is passed as quickly as possible.
I am prepared to answer any questions you may have.
Bill C-24 will probably mean that bikers will become anonymous. As some media have reported, bikers have said that they were abandoning certain affiliated clubs and that some chapters would be closed down. In my view, this is misinformation. The youngest of us remember that after the Lennoxville massacre in 1987, 23 people of 39 were convicted, and decisions were made by police organizations and by politicians based on the fact that the Hells were finished. We let them rise up again from their ashes, and today, we know what happened as a result. This will definitely not be the last time you hear from us.
I can tell you that having spoken to some members of the Hells Angels, the Bandidos and their lawyers, the reversal was something the bikers feared, namely that they would have to come in and explain to a judge how they had acquired fortunes of several million dollars. These provisions are not contained in Bill C-24. We may see them in the amendments or in a future bill. When they found out in November that these provisions were not in Bill C-24, on December 29, four chapters of the Bandidos and 200 members of the Hells Angels arrived in Ontario. As we can see, they adjusted quite quickly. We will have to think about these matters as regards the reversal of the burden of proof for property seized in connection with organized crime. This applies not only to bikers, but to all the other organized crime families.
Senator Beaudoin: My question is about clause 11 on page 18 of the bill. I am told that this is a new offence, and I would like to know what you think about it, Mr. St-Laurent.
Subclause 2 prohibits people from committing a crime, without lawful authority, with the intent of provoking a state of fear. If I understand correctly, this is a new crime.
I asked this question the other day of some justice officials and police officers who were appearing before us. I find the expression "without lawful authority" very unspecific. Who gives the lawful authority? Is it the police, the chief of police? Is it the minister? Is it the administrators?
What exactly is this offence? Is it new? I have heard that it may already be in the Criminal Code, but I do not claim to have any expertise in this area. Nevertheless, our role is to ensure that we respect the principles of our society and that we protect it. Since this is a new offence, I would like to hear what you think about it.
Mr. St-Laurent: I have my legal adviser with me, and he will answer your question.
Senator Beaudoin: I have nothing against legal advisers.
Mr. Denis Asselin, Counsel, Deputy Chief, Head, Legal Affairs Division, Montreal Urban Community Police Department: I think the expression "without lawful authority" is quite unnecessary, because the current section 423 of the Criminal Code refers to intimidation in general and "without lawful authority". Consequently, this expression could be removed, because it is impossible for police officers who want to follow an individual from place to place to focus on a group of individuals or on the public generally for the purpose of interfering with the administration of the criminal justice system.
It is impossible that this is one of the intentions sought if a person wishes to engage in conduct set out in subclause 2. This expression is completely superfluous. It comes to the same whether we keep it or remove it. I see no examples of justifications that could harm the administration of justice lawfully.
Senator Beaudoin: So what does this clause mean? People could identify individuals with the intent of frightening them, even during a trial. This is a new crime which obviously frightens people. I fail to understand why this clause is in the bill.
Mr. Asselin: Intimidating people is a further attack on the foundations of our society. For example, we attack freedom of the press by attacking journalists. We can attack crown attorneys, senators or legislators. The harm is greater. That is why provision has been made for a specific crime that would receive harsher punishment. That would allow us to have more sophisticated investigative tools, such as easier, faster access to wiretapping, without having to fulfil one of the obligations, which is significant for the police. It involves demonstrating, over months and months of investigation, that all other recourses have been exhausted before this precious tool can be used.
Senator Beaudoin: As far as the disclosure of evidence goes, the Charter of Rights and Freedoms provides that all accused are entitled to a full and complete defence. In our system, the Crown must disclose the evidence to the defence. We have a system that works well, but you are telling me that we are up to millions of photocopies. Might there not be some way of summarizing this evidence?
Mr. St-Laurent: When we conduct an investigation, all the evidence we have, whether or not it is used in the course of the case, must be submitted to the defence. The evidence includes statements, wiretap tapes, tailing reports, investigation reports, and so on.
Senator Beaudoin: Does that not concern you?
Mr. St-Laurent: No, we have always done this. We have no choice. Let us take the example of a case where we have about 100 accused individuals. When we start giving all these people a paper copy of all the documents we have, we find ourselves having to photocopy several boxes of paper.
We have to provide the documents in English as well, if this is requested. The provincial government has to pay for the copies in English. As far as the disclosure of evidence goes, the police provides the Crown with these famous photocopies. The cost of the labour involved, the time, the paper and the audio cassettes are significant.
Senator Beaudoin: Do you have any suggestion you would like to make?
Mr. St-Laurent: I would suggest that we be authorized to distribute information electronically on diskettes, as was done with the evidence in the case of Operation Spring 2001. The problem was that in the case of Operation Spring 2001, the lawyers challenged this procedure. They finally agreed to it, and the evidence was filed in this way. They argued that there were not enough computers in prison. Subsequently, they realized that the equipment that had been promised to them was being used to record pornographic films and other things, but they were given the equipment nevertheless. However, the act does not require this. The judge could have decided that all the evidence had to be on paper. That would have neutralized the Montreal squad for several months, just on the biker problem alone. Just to make the photocopies.
[English]
The Chairman: For the information of senators, you might find it interesting that the next bill coming before this committee is Bill C-15A. I believe there is a section in it on disclosure of electronic information that may update and solve some of the problems of paperwork that you are facing. We will be looking at that bill next week.
[Translation]
Mr. Asselin: Under this bill, it will be possible to get a search warrant electronically. It will be easier to submit the application electronically to the justice of the peace and get authorization to search in the same way. An information could be laid electronically and an arrest warrant could be obtained in the same way.
However, not all the evidence collected during investigation is covered by these provisions. When we undertake an investigation, such as Operation Spring 2001, which lasted three years, from the very beginning, the police assembled all the facts and evidence electronically. Paper is no longer used.
Everything is stored and retrieved immediately. At the end of a three-year inquiry we have all the evidence collected over the three years on compact discs and floppy disks. It is much easier to communicate in this way, rather than having police officers spending their time making photocopies rather than protecting the public.
Mr. Ouellet: To give you an example, in the case of Operation Spring 2001, there were roughly about 100 CD-ROMs that we would have had to disclose for each accused. This amounts to 500,000 pages. A box of paper contains 5,000 sheets. So it would take one box for each accused. There were 140 accused in all.
Senator Beaudoin: We will take your suggestion into account.
[English]
Senator Pearson: I would like to address my questions to Mr. Ryan. Mine is a practical question to help me understand better the usefulness of this bill.
I was in Vancouver on Monday speaking with some young people who have been involved in the sex trade and others who are working with them. It was brought to my attention - rather unnervingly - that the growth of organized crime in dealing with kids under 18 in British Columbia, and perhaps elsewhere in Canada, has been rather marked. They are getting better at marketing and so on.
Do you think this bill will help you to deal with that problem? Could you give me an idea of how this might work?
Mr. Ryan: In many respects, this legislation creates an even playing field across a number of different enforcement strategies. What the police community has observed in the last 20 years is a legislative response that fixes this, fixes that, or places a Band-Aid over this problem or that problem. The result of that is a number of inconsistencies that apply to drugs or do not apply to non-drugs; that apply to this environment but not to that environment.
The benefit of this legislation is that it creates an equal playing field across a number of different areas, which will affect not only the youth but also the very sophisticated and senior levels of organized crime. That is why this legislation is so well accepted by the police community.
Senator Pearson: In that sense, do you think this bill will be helpful in dealing with the way in which the pimps and others are working under the aegis of organized crime?
Mr. Ryan: Yes, I do. For example, you may be able to seize the proceeds of crime from the drug activity in which these young persons are involved, when the proceeds flow upwards to the groups or individuals that organized these young people. However, you are not able to seize the offence-related property such as the cars that they have obtained as a result of extortion. That is the dichotomy.
A difference that was not touched upon is the fact that under the CDSA or the drug legislation the police can make application for income tax records, where it is necessary, with the judicial authority to do so. That still remains to be addressed. If the offence is gambling, the police cannot make application for income tax records.
Organized crimes groups do not take one type of crime. They cover gambling, several different types of drugs, extortion from prostitution and move with some degree of fluidity between them. These barriers within the legislation present problems.
Senator Pearson: This bill will take out some of them, will it not?
Mr. Ryan: Yes, it will remove some of those barriers.
[Translation]
Senator Joyal: Mr. St-Laurent, I do not think that anyone around this table would challenge the need for legislation to authorize the police to do their work while maintaining their credibility with the public. I think this is the objective of all police forces throughout the country.
In this specific context, particularly in Quebec, as we are reminded by the presence of Ms Laforest and Ms Desrochers, the power to destroy the roots of the social gangrene of criminal gangs in Quebec is an objective that is very important to all of us as legislators.
What we are trying to do with this bill is to ensure that it is Charter-proof, that it is not challenged in court too quickly, because, in practice, a court challenge would nullify the months or years of investigation that might bring some of the notorious criminals to justice and put them behind bars.
Your entire presentation seems to focus on the crimes committed by motorcycle gangs, but the bill goes much beyond that. You drew a very apt parallel to the Controlled Drugs and Substances Act, in that there are clear limitations on the authorization given to the police to commit acts that would be considered crimes, because this is done as part of the war on drugs.
In the context of this bill, the most important provisions are general in nature. For example, another Senate committee has already debated Bill C-36, the anti-terrorism bill. The power we give to the police in Bill C-24 could also be used in the campaign against terrorist activities.
On the basis of the limits laid down by the Supreme Court in some very recent judgments, how can we limit the power given to the police and ensure that this bill will pass any court challenge, ultimately in the Supreme Court?
To the extent that the authorization is given to specific individuals, I think the bill would meet the test established by the Supreme Court in earlier judgments, with which you and Mr. Asselin are very familiar.
However, the problem here is that the bill provides authorization not only to the individual police officers, but also to groups of police officers within a force. I will tell you quite frankly that in my view, this is a problem. Our objective is to ensure that the criminals who killed little Daniel and Mr. Laforest are not released because the courts find fault with a technical detail of the bill.
It would be justifiable for police forces to come before Parliament to say that it did not properly define or limit the authorization granted under the bill. I would like to hear what you have to say on this, because we want a bill that works, and one that is not struck down in the first court challenge.
Mr. St-Laurent: First of all, I want to make sure I understand your question correctly. You referred to my presentation, which was focused much more on organized crime, and more specifically on motorcycle gangs. I would not want the committee to see my presentation as restricted to motorcycle gangs, because it was about organized crime in general.
At the time, we called for improvements to Bill C-95, to make it more effective in fighting organized crime. If I understand your question correctly, it is mainly about the powers that would be given to police officers on the basis of their unit. The way in which the text is drafted shows that this is not restricted exclusively to organized crime.
As regards the Charter test, we share your concern. When we open a file or conduct a criminal investigation that lasts for years, we try to avoid errors, because initially, a trial is based on the procedures used by the police to conduct an investigation, and the trial is held in accordance with the Charter. The police are accustomed to that and try insofar as possible to avoid mistakes.
However, by the time we asked Parliament to give us certain tools, in Campbell and Shirose, we did not say how this should be done, because we do not claim to be Charter specialists and to know whether or not these tools would be acceptable or not. The Justice Canada officials who studied the issue determined that the risk was not very high and that Campbell and Shirose would pass the Charter test.
We were told that there were some limitations, that the police could not commit murder or sexual assault. That was in an effort to pass the Charter test. I do not think it was ever the intention of the police to commit such offences. This was never done in the past, and will never be done in the future, because it is not part of our mandate.
Mr. Ryder dealt with the problem in terms of court protection rather than immunity, as is done at the moment in the case of the use of force. That was the parallel I was drawing. A precedent was established with the Controlled Drugs and Substances Act.
Personally, I do not think that the form this takes in the bill is very important. The important thing is that I be given the tools I require to do my job. As to whether or not the bill will pass the Charter test, I do not think I am the best person to answer that question.
Today, I wanted to make sure I transmitted a very clear message to the effect that we need tools. As to the other issue, my learned lawyer friend may care to hazard an answer. However, I would like to close by touching on the issue of undercover operations in investigations other than those on organized crime.
It is often said that one picture is worth a thousand words. Recently, an informer told the police that a young child was to be kidnapped and that everything was organized. There were two individuals who were looking for people to drive the vehicle and to take part in the kidnapping.
The informer told us about this and we put our undercover officers on the case. We managed to find out that the two individuals were not alone, that there were two others involved as well, including the "brains" of the operation. We did not know who the child nor the parents were. We had to play the game for a while in order to find out all this information.
During the investigation, to test our people, the perpetrators asked for vehicles, disguises and weapons. During this investigation, fortunately, we always had the same police officer. We avoided committing offences, but during the investigation, we had the time to rent a vehicle, to obtain non-operating weapons and disguises. However, suspects will often say: "We are going to steal a vehicle tonight to do the job." If our undercover officer does not do this, that is the end of the investigation. We did not know the identity of the child who was supposed to be kidnapped, nor did we know who the other members of the organization were, and the crime could have happened at any time.
These people were not involved in organized crime. They were arrested. Even though the investigation was carried out, the head of the operation was never charged. I can assure you that a great deal of evidence was accumulated. At least three of the four perpetrators were arrested. The family was identified, the parents were advised, and a crime was prevented. It was not an investigation involving organized crime. Infiltration was necessary.
The police must not be limited in the use of investigative tools which, in any case, will be re-evaluated at trial in order to determine if proper procedures were followed, if these were acceptable to society and in accordance with the Charter. They will be put to the test in any case.
Mr. Asselin: If I may, I believe that you all agree that what has allowed organized crime to take on the importance that it now has, is due not only to the intimidation factor but also due to wealth. They line their pockets in two ways: through drug trafficking and through the proceeds of crime.
At this time, because of the laws regulating certain types of drugs and other substances, peace officers can also engage in drug trafficking, importing, and production, in order to infiltrate these groups and dismantle their organization. Under the Criminal Code, they are allowed to launder the proceeds of crime, and in so doing, commit the same offence, with less supervision and fewer restrictions than are included in the Criminal Code with Bill C-24. The use of such means has not yet led to any abuse.
For example, as Mr. St-Laurent told you, since the regulation allowing us to engage in trafficking and possession of drugs came into effect in 1997, we have undertaken a dozen operations. Those who are assigned to such activities are hand picked. We have 12 such officers. Bill C-24 stipulates that the Quebec Minister of Public Security will designate which law enforcement agencies have the qualification or expertise to undertake such activities.
With respect to drugs, on the 150 police agencies in Quebec - at least until recently - only the Sûreté du Québec and the Montreal Urban Community Police Service were involved in laundering the proceeds of crime and in drug trafficking operations. Of those two agencies, only our ultra-specialized and properly trained units are involved.
I believe that the supervision is even greater than what is stipulated in the Criminal Code at this time.
[English]
Mr. Ryder: I would like to again speak on behalf of the rank and file members - the undercover officers who are actually doing these jobs, because Bill C-24 applies to all of them.
I want you to be thinking about the role they must play. If they are among a group this size pretending to be a member of that group, they are like an actor. They will be tested. Certain circumstances present themselves, and right now, they have a very difficult task knowing what to do and not to do.
It is true they are highly trained professionals. Sometimes they will make mistakes, but we must imagine the kinds of roles and situations they face. That is why I think the Bill C-24 provisions should apply to all undercover officers.
Senator Nolin: Mr. Ryder, on that point, could you explain what kind of process you have put in place for internal control? What kind of control have you put in place to ensure that the work is done professionally and respects your responsibilities? Tell us what you have in place now. We will talk later about the future.
Mr. Ryder: In place now, we do not have a particular process. I would think that we are not doing some of the things that would have been envisioned before Campbell and Shirose. Some operations may have been suspended.
We have our ideas of where we will go after this legislation is in place and, of course, the authority will be granted to the Deputy Commissioner, Provincial Commander, Investigation of Organized Crime, to do the authorization as permitted in the act. However, we do not have a mechanism in place as of today.
[Translation]
Mr. St-Laurent: I will explain how our system of undercover agents operates and our procedures as they relate to the Food and Drug Act. Among the 4,157 police officers within the Montreal police force, we have 12 undercover officers.
These officers are chosen for a period of three years. They have a three-week training course which involves role playing. They are given psychometric tests to evaluate their integrity and character and to ensure that they are not deviant. That should not be the case since they have managed to pass the test to become police officers. Whenever they are on an operation, except for very special cases, they are always wearing a microphone. There is a support team, police officers who are there to ensure that they will not be on their own. These police officers stay well back. One officer tails them. They are never on their own. There is someone to supervise the operation. That is how we do things at this time.
When we prepare a drug trafficking case, only those who work in our organized crime unit can take part in this type of operation. Our procedure is very clear. Before undertaking such an operation, the officer who is responsible for the division must seek authorization from the deputy director of investigations. I am the assistant director of criminal investigations in Montreal, and I must ask my superior for authorization in order to proceed with this type of operation. I can assure you that this is not something that we do very often.
During the operation, a report must be made to indicate what information we already have, how likely we are to succeed, and the reasons why we feel we should go ahead.
If the deputy director gives his approval and issues a certificate for undercover work, according to the act, the certificate would allow the police officer to undertake the operation within a certain number of hours. A report on the operation and what has been uncovered must then be submitted to the deputy director.
We have tested the system. One of the lawyers representing the accused in one of our cases called the deputy director to appear in order to ensure that our system would stand up in court. The deputy director explained the procedure and it was allowed.
The same thing would apply if Bill C-24 were to be implemented. We would have designated police officers. In our case, the superior officer would probably be the deputy director or the assistant director. He would authorize the operation.
Senator Nolin: What do you do in an emergency?
Mr. St-Laurent: In the drug trafficking cases that I am talking about, there is no emergency because everything is planned. The problem arises when we infiltrate a group and we are asked to do something to help things move forward.
Senator Nolin: That is the subsequent report.
Mr. St-Laurent: Exactly. Of course, if an emergency arises, the undercover agent is negotiating something with an individual and it is obvious that he cannot get out of it, but he will make every attempt not to commit an offence. As we said earlier, police officers can make mistakes, but, generally speaking, our people are well trained. I can give you an example; our undercover officers who are engaged in drug trafficking are often asked to use these drugs within the group that they have infiltrated. They want our officer to take the drugs, but a police officer is prohibited from using narcotics. Our undercover officers are not allowed to take drugs.
Senator Nolin: Even if the bill allows them to do so.
Mr. St-Laurent: Our rules do not allow it. Our people always manage to get out of it, unless it is a question of life and death. That will always remain an exceptional measure, but it is important to have this tool to protect our police officers because they are involved in high risk and stressful work. Not all police officers are willing to do it. And I'm not sure they will be willing to continue if they don't have this protection.
Senator Nolin: The system that you have just explained allows for control beforehand and, in the case of an emergency, control after the fact.
Mr. St-Laurent: That is correct. In any case, we always have control after the fact because there is always a disclosure of the evidence.
Senator Nolin: I will be very honest with you. In spite of all of the goodwill that I recognize you have, and the fact that only two law enforcement agencies in Quebec seems to be structured in such a way as to allow for this type of activity, the problem lies in the fact that there is no outside legal control.
If it is possible to have some internal supervision, something that is fairly stringent according to what you have just told us, before or even after, there could also be some type of judicial involvement, as is now the case with electronic surveillance. I hope you will understand our concern. Nothing is pressing for the time being, but we are attempting to determine how we can slow this down.
Mr. St-Laurent: The changes we want to make in Bill C-24 have to do with narcotics.
Currently, in most narcotics files we have the time to get judicial authorization to do a "reverse sting" because it is a part of our plan. We tell the individual that we could meet on a given date. We always have a way of telling him that we will go get the narcotics or that we do not have them. Despite this, legislators deemed that this was not necessary and both prior internal controls and controls after the fact will remain in place -
Senator Nolin: We can change this act. We know that the 1996-1997 act introduced that, but we want to broaden the scope. This is not only for possession, trafficking, importing or cultivating drugs. We are not dealing with this, but with something much broader. It is more an issue of eliminating things than adding them, because murder and some very serious crimes have been eliminated, while allowing any other kind of crime. Therefore we are wondering whether we should implement an anterior or posterior control mechanism for emergencies.
Mr. St-Laurent: I explained that the judicial controls that take place after the fact are still in place. That is what I am telling you.
Senator Nolin: Internally?
Mr. St-Laurent: No, I do not mean internally. I am telling you that there is always an a judicial control after the fact. We cannot carry out operations that lead to arrest without disclosing how it was done and by what means. A judge will always evaluate what police officers have done to determine whether it was just, acceptable and reasonable. It will be evaluated. Otherwise, police officers will not be allowed to do it.
Let me come back to the example given just now by Mr. Ryder. Currently, police officers are protected by the law. They can use force up to and including lethal force, in cases where they deem that their lives or citizens' lives are endangered. They are not asked to have prior judicial authorization, they are left to act according to their discretion.
Afterwards, they will evaluate whether what was done was just and reasonable. Currently, with the narcotics act, we are doing exactly the same thing. Mr. Ryder mentioned other exceptions provided for by the act, aimed at the proceeds of crime or arms trafficking.
Infiltration is a means of investigation. There are not countless ways to investigate and fight organized crime. There is electronic eavesdropping, searches, shadowing and infiltration. Without these means we cannot work. You have just deprived us of one of these means with the Campbell and Shirose decision.
The Campbell and Shirose decision did not say that police officers cannot engage in infiltration, but rather that it must be monitored by legislators. They chose monitoring, which is not unlike what they did with the Narcotic Control Act. We should apply the same principle and provide judicial protection to police officers. In our former operations, we always avoided, as much as possible, committing any offences and we always made sure that there would be no victims. The police officer was certain that he would not be found guilty because he did not intend to commit a criminal act. He was doing his work and he was trying to set up a file in order to arrest criminals.
In today's debate, it is as if police officers had asked for the right to commit criminal acts, which is not the case and never will be. We are tested in our daily work and we have to engage in infiltration.
I just mentioned a case that did not involve organized crime and that is reality. We arrest the individual and interrogate him. If he has nothing to say, the young person might be abducted in two months, but we will have done all that we could do. We cannot go any further than that, and legislators must find the best way of proceeding.
[English]
Mr. Dennis Moore, Detective Superintendent, Organized Crime Unit, Ontario Provincial Police: With regard to dealing with the external checks and balances during an operation, you must remember that we are talking about organized crime, which involves a higher level of investigation. In Ontario, like Quebec, to the best of our ability, all our plans are done ahead of time. They are all done on paper. All the plans have built in layers of supervisory decisions, both during and after.
These are life and death situations, if we make the wrong choice. The people who have to make the decisions are of various ranks. They got where they are because of their experience. To bring in a civilian, for instance, to partake in those decisions during the investigation would be unfair to that external source. That is because they would not have had the opportunity to gain the experience and the day-to-day knowledge.
Prior to Campbell and Shirose we operated basically under a common law. We have always been accountable. The decision in Campbell and Shirose did not tell us we did something wrong; it merely pointed out that there was no law that allowed us to do these things. Thus, Parliament has been asked to put the law in place. We did not break the law at the time. We operated under the same guidelines as we do every day. We will now report back. However, we have always been accountable, and we always will be. We always operate within the law.
The Chairman: Thank you very much, gentlemen, for appearing before us tonight.
Our next witness is Ms Louise Viau, who is a law professor at the University of Montreal.
[Translation]
Ms Louise Viau, Law Professor, Université de Montréal: Madam Chair, I must thank you for inviting me to share my views about this bill.
You might be surprised to learn that I support this bill, even if I am portrayed as a fervent defender of civil control over police activity. Why must we amend the Criminal Code? I think that the witnesses we heard up to now, at least the ones from the Department of Justice and the police forces, demonstrated quite eloquently how important it is, after the Campbell and Shirose decision, to review our legislation and to ensure that police officers can go on with their work.
As Mr. Moore said, before the Campbell and Shirose decision, police officers always believed in good faith that when they were involved in infiltration operations and they sometimes had to commit offences, they were acting legally, in light of a common law decision, the Waterfield decision that had developed the theory of auxiliary powers. This means that when police officers have an assignment, they have the powers that correspond to their obligations.
The Supreme Court, in the Campbell and Shirose decision, concluded that police officers were wrong and that they had to act on the basis of powers provided for by legislation. The Supreme Court invited Parliament to adopt legislation, if it deemed appropriate to do so. In fact, there are two positions facing the police forces. After the Campbell and Shirose decision, we respected the Supreme Court and stopped carrying out infiltration operations that might involve the commission of criminal offences or that might ignore the Supreme Court decision. We agree that the second choice is unacceptable.
From the moment when the Supreme Court tells us clearly that an infiltration technique or certain kinds of behaviour are illegal, police officers should not fall into the trap of what I called in my submission, in an expression I borrowed, corruption for a noble cause. This is socially unacceptable.
Police officers cannot be allowed to breach laws with impunity in order to do their work. Police officers cannot be allowed to commit perjury in court, even if they are convinced that a person has committed a crime. This is socially unacceptable.
How can we give police officers the powers they need after Campbell and Shirose? This could be done by legislating, by legalizing the behaviour that political authority and civil society, both represented by the police, deem to be acceptable. You may say that the act goes too far. What is the objective of this act? To protect police officers against unjustified criminal prosecution if they have acted within the framework of an operating plan, or under the orders of their superiors, and to avoid as much as possible constitutional challenges like those that were brought forth in the Campbell and Shirose affair.
What options do legislators have? They should simply provide the means for defence. There is a new justification created under clause 25.1 as has already been done for the use of force, self-defence or the defence of property. Police officers are not given absolute power. Moreover, unlike what was done with the use of force or self-defence, legislators thought it good to frame this in stricter terms. This does not allow any kind of offence to be committed in the name of fighting organized crime or other kinds of crime. Mr. St-Laurent explained that, in certain cases, the offence does not involve organized crime, but nonetheless, an infiltration has to be carried out in order to detect the crime and arrest the persons while they are conspiring before more serious damage can be done to society. Despite all of this, and there are certainly people who do not agree with the limits mentioned in the Criminal Code, we are told that there are three kinds of offences that police officers cannot commit.
We understand the issue of willingly and intentionally inflicting bodily harm or death. We do not intend for our police officers to become murderers and to decide personally to kill people because they are convinced that they are criminals and that the judges do not deal with them severely enough. This is not socially acceptable. This is not allowed.
Also, police officers are not allowed to commit perjury, or to torture people to get a confession. That is out of the question.
The third exception is the prohibition of sexual assault. Our definition is very broad. But you know that if someone touches my breast, he is committing sexual assault. There are messages that have to be conveyed to our society and the protection of the sexual integrity of a person is an important message, and legislators are poring over it. There are offences that should not be committed, even in the context of undercover work. These reservations will result in police officers being tested by being required to commit these kinds of offences.
It is not new for bikers engaged in organized crime to commit sexual offences during their initiation rites. I am thinking of the Dunlop and Sylvester case where the Supreme Court, through Justice Dickson, concluded that passive attendance at a gang rape is not a crime.
Thus, as far as I'm concerned, I think that the message sent out by the legislator is that they do not want police officers or agents working for the police to commit such acts. This limit seems acceptable to me, as an initial limit provided in this new means of defence, rather than empowerment.
There is a second limit or restriction provided by the act. The proper authorities must designate police officers who are allowed to do this. You may have noted that between the initial tabling of the bill and its first reading, and the bill passed by the House of Commons, this provision was restricted by stating that the appropriate authority must be the minister to whom the police officer is accountable.
This legislation is aimed at police officers, but also at other officials responsible for other kinds of law enforcement that might be accountable to other ministers than the ministers involved in public security or the Solicitor General. So this is an initial and very direct means of control exercised by an elected representative. The minister must take on his responsibilities, and then the investigator must be designated by name, or by identifying the unit he works for. So there is no question of authorizing all police officers of the Sûreté du Québec, the SPCUM or the OPP to commit acts included in clause 25, (1). The authorization is accompanied by conditions regarding the duration, circumstances and nature of the offences that might be committed. The Criminal Code has provided for very strict controls over these matters.
As for justification, we wonder if there is a prior review. Yes, there is an a priori review but it is not a judicial review. Is it sufficient, should we add an a priori judicial review? I thought this over. I am not convinced of it. First, because urgent situations often come up that would make the judicial review ineffective. Then, we should never lose sight of the fact that in the context of undercover operations, any leaks could endanger a police officer's life.
As you let more and more people in on the operation, you increase the risk of letting an infiltrator into the system, someone hired by organized crime who could jeopardize the life of a police officer or some other agent in charge of the infiltration.
Secondly, the a posteriori review still exists. The witnesses who came before me said it and I totally agree with them. The possibility of criminal prosecution of a police officer who would have committed this kind of act still exists. Take an unauthorized police officer engaging in corruption for a noble cause, because he really wants to nab some individuals, because he wants to conduct the operation while disregarding the directives of his police force and the operational plan; such an officer would not be immune from criminal prosecution. Even if he follows a well-defined operational plan, a police officer is not totally immune from criminal prosecution. He could be prosecuted, and in the hypothetical case where a judge or a jury concluded that it was unreasonable, in the circumstances, to commit that act, he could be convicted. As an analogy, let me tell you about the Gossette affair. Police officers have the right to use force in carrying out their work, which does not mean that in certain circumstances, police officers can be prosecuted and convicted. In other cases, they are not, but that is not the point. The risk of being prosecuted is always present.
Criminal prosecution is not the only way of ensuring control after the fact. If we look at the matter strictly from the viewpoint of the police officer himself, there is also all the control exerted by way of the code of ethics, and then there are the civilian oversight agencies. They exist in all the provinces, for the RCMP, and there is the police code of ethics in Quebec. There is this other filter that comes into play after the fact.
As well, one of the outcomes of the Poitras report was the establishment of a review board for the Sûreté du Québec, a review board that will be in effect for a limited period of time. This review board will be in place at the same time as this new legislation is tested in its earliest days, if it is passed soon, as I hope it will be.
There also is some control because of the possibility of a civil lawsuit or a criminal charge laid within the framework of such an operation. Bill C-24 will not block any challenge like the one in the Campbell and Shirose case. It will still be possible for the accused to tell the court that the police officers - even if the legislation provides for a framework - went too far, and that their conduct violated the letter or the spirit of this legislation, and that consequently, as a remedy for a violation of the accused person's constitutional rights, the evidence should be excluded or the procedures should even be halted, as was requested in the Campbell and Shirose case. This mechanism is still present.
The bill provides for tighter civil and hierarchical control if the operation involves destroying or damaging property: written authorization from the senior official, and a written report from any official who has permitted a source to commit an offence. So accountability has been built into the criminal legislation.
During a certain investigation, I learned that some police organizations - and the Sûreté du Québec is not unique, at least not the Sûreté that we knew before the Poitras Commission - had a corporate culture that did not like written documents, because written documents mean a paper trail. So, the legislators have specified "documented"; there is an obligation for it to be in written form. Mr. St-Laurent told you earlier that the Montreal Police Force really does these things in writing, and that the proper procedures are in place.
I could not tell you whether the same procedures exist within all police forces, but we could determine best practices throughout the country and consider giving training to all police officers and police officials, to ensure that the hierarchical control does truly exist.
We should also bear in mind - we do not need to amend the Criminal Code to do this, people in Quebec learned their lesson after the Poitras case and the other provinces that needed to did draw some lessons from the bad experience in Quebec - the political controls over police forces, which are very important. The ministers who are responsible for law enforcement must accept their responsibilities. When the Poitras report asked "Who polices the police?", in the final analysis, that question was aimed at the political authorities. Amending the Criminal Code or placing tighter controls on the Criminal Code, as we find in clause 24, will not ensure that the politicians do a better job of accepting their responsibilities than in the past. Particularly since we already have a great deal of control over police forces.
As for the other organizations that may conduct undercover operations, I do not know what kind of hierarchical control exists. I will take this opportunity, since I am appearing before you, to remind you of all the ministers who are responsible for various units, who will be responsible for ensuring that their staff is well trained and that the rules are well known. It will up to them to ensure that no person who commits an offence as part of an undercover operation thinks he is above the law and immune from prosecution, even criminal prosecution. That is what I had to say about clause 25 of Bill C-24.
As for the proposed section 423.1 of the bill, I understand that Senator Beaudoin is very concerned by this issue. I have done some research since it was my pleasure to read the earlier testimony and to see what the major concerns were. I was able to trace back the origin of the wording to section 423 rather than section 423.1, and this takes us back to the time of the industrial revolution. At the time, there was a great struggle between capitalism and the proletariat, as to whether workers should be allowed to strike, to picket in front of the workplace or elsewhere and to try to convince their co-workers to form a union.
This was the backdrop against which the provision was drafted. In England, the provision read "wrongfully and without legal authorization" and in Canadian law, in 1892, when the first Criminal Code was passed, the expression used was "lawful authority" rather than "legal authority." There is another small difference, if you look at the text, which unfortunately is not found in the bill. I am referring to subsection 2 of section 423, which was found in the English legislation but not added to the Criminal Code. This caused some litigation, and consequently, in 1934, legislators reintroduced the subsection, thus bringing the Canadian legislation into line with the English legislation.
Now, this expression has been interpreted by the courts, in this specific context, as allowing for certain action. For example, following a person was illegal if it was a nuisance, in the common-law meaning of the word, or "an unlawful act." If the action was purely illegal, that was all right. Some judges have said that the effect of the provision was to raise what was in fact a "civil tort" before passage of the legislation to the level of a criminal offence.
However, in light of the purpose of section 423.1, do we need to keep the phrase "without lawful authority"? My colleague, Mr. Asselin, said that it was unnecessary. Indeed, in light of the specific intention found in this provision, it is likely the actions that a police officer might take would not be intended to hinder the administration of justice, and so on. Consequently, most likely, this phrase is not needed, but it is not doing any harm.
As for myself, I saw it as not being necessary. You know that clause 25.1 provides a justification for the actions of peace officers, and for sources, members of an organized crime ring that are being paid to provide information. Assuming that police officers have been told or have reasonable grounds to believe that another police officer, for example, apparently is a member of an organized crime ring, and assuming that they wanted to carry out an undercover operation to test him, is it possible that under some circumstances, the police officer or another undercover agent might do certain things that could appear to be criminal in nature? Perhaps.
We must also look at the Supreme Court's interpretation of words such as "with the intention of" and "in order to". I believe that there still is a case before the Supreme Court. Under some circumstances, the Supreme Court is of the opinion that doing something that one knew would have a certain effect, is the same thing as a specific intention.
Consequently, as part of an undercover operation not intended to hinder the administration of justice - in which case there would certainly be no justification since this is specifically ruled out by subclause 11 of clause 25.1 - for instance, if someone was suspected of corruption and if someone wanted to conduct an undercover operation, such an operation could indeed be organized. And this person is truly protected, whether or not the words "without lawful authority" are present, since the existing justifications would apply. It is entirely defensible.
I also did this because assuming such undercover operations were possible, in very rare cases, of course - because I do believe that our system is not corrupt and that our judges and police officers are not corrupt - we could allow the authorities of the various organization, by way of this expression "lawful authority," to monitor the undercover operation more strictly, saying, for example, that an undercover agent cannot lead such an operation unless he is a police officer and that sources cannot be used.
So I share the view of my colleague Asselin in saying that it is not prejudicial but, all things considered, I would be inclined to leave it rather than remove it. Senator Beaudoin, I can provide you with the text that was my original inspiration, it goes back to the 1920s and was written by a Toronto Crown prosecutor, Mr. Eric Armor, and is published in 57 CCC, in Canadian Criminal Cases, page 1, the title of which is "Picketing."
Senator Beaudoin: Thank you for doing such extensive research and going back so far. We understand why it is there and that in itself is no mean achievement.
Now, should it be kept? After listening to two experts, I was inclined to say it should be removed but now you are telling us that it can also be retained. My only hesitation would be whether it will be understood, in legal circles, that it can also mean that. We do not have any case or ruling of the Supreme Court concerning the matter. I defer entirely to your research when you say that it can be kept and will not be harmful. So we should perhaps keep it in. I hope that other people will read what you have said here and that if there were ever a court case on the subject, it would be possible to explain where it comes from.
Ms Viau: There is a 1926 ruling, Reners v. The King which was published in Canadian Criminal Cases, 46 CCC, page 14. It is very easy to find this information. I simply clicked in three words in the search engine Quicklaw, namely "unlawful," "authority" and "intimidation," and this text is the second out of a hundred. If I had had more time, I would have read all the 100 records but since I was concerned about the origin, I also looked in Martin's Annual Criminal Code, in the annotated Quebec codes as well as Lagarde's Droit pénal canadien which is always a good source to go back to the origin of a legislative text, tracing it back to the first Criminal Code and even in some cases the English legislation upon which it was founded.
If ever this question were to arise in the courts, particularly with the new information technology now available, it would by no means be an insurmountable task.
Senator Beaudoin: Yes, but we have still found out as a result of your research. It is something that bothered me from the beginning since I could not understand what was meant by "without lawful authority" but as you have explained, it goes back very far. When we understand the historical background, we can draw a plausible conclusion.
I have been told that there are sections of Bill C-24 that are already in the Criminal Code. From the legislative point of view, I have no objection to keeping them there because we are attempting to have a more efficient bill to protect society. I agree with that but I cannot understand why they have proceeded in this way. Was it necessary or not? It seems to me that it is necessary.
Ms Viau: If we refer to section 423, the section was already in existence but it was amended. I compared the amended clause 10 in the bill with the present provision of the Criminal Code. We already have the case of unqualified intimidation, whereas I would consider section 423.1 to be perhaps a type of "aggravated intimidation," in view of the specific intent.
The wording in section 423.1 is:
... with the intent to provoke a state of fear in ...In dealing with the intention to obstruct the exercise of the powers of a person linked to the administration of justice, there may be certain acts for which the Crown is unable to prove this specific intent, which would mean we are dealing with an offence as set out in the present section 423 of the Criminal Code.
The present section 423 is a summary conviction offence which does not carry a very severe penalty, namely a maximum of six months in prison or $10,000.
Senator Beaudoin: So the new section is better?
Ms Viau: It is definitely better because at least we have a hybrid offence allowing the Crown to assess the facts of the case and, if need be, lay a charge for an indictable offence rather than a summary conviction one.
Senator Beaudoin: It is a matter of balance. All the better if this can help protect society while respecting our fundamental values.
Senator Joyal: I have two other series of concerns, taking into account the recent Supreme Court case law including among others the Campbell and Shirose decision and other cases that we have had the opportunity to quote, such as this one relating to the authority provided in clause 25.1(2) and which says the following:
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 ...
It says that for the sake of public interest, it is necessary to authorize persons, and subsection 3 says the following:
A competent authority may designate public officers ...
For example, it could be an officer who is a member of an undercover operation.
... or groups of public officers ...
In this case it is not an officer who is part of an operation because he belongs to a category within a particular police force. In reading decisions of the Supreme Court and attempting to understand the approach it is taking, we note that the Supreme Court is always careful concerning the authorities enabling police officers to commit offences which would otherwise be criminal offences.
Would this bill not provide better protection if the authority were given to designated officers, to individuals rather than to groups? In my opinion, that is one of the weak points of clause 25. As we pointed out to several witnesses along with other persons taking part in our proceedings, it is our wish to ensure that the act stands up to the Charter test as well as the standard of the Supreme Court relating to the rule of law as it affects the police in cases where they must commit offences as part of their regular operations.
Ms Viau: Of course the control would be tighter if it were expressly stated that the police officers or other public officers would be individually designated by the minister. In view of what Mr. St-Laurent told us about the number of persons belonging to the elite unit of the SPCUM - 12 policemen out of 4,000 - there would be no great difficulty in requiring the minister to individually designate these 12 persons.
The Criminal Code provides that certain Crown attorneys may act as attorneys for electronic surveillance. It is not the case for all Crown attorneys, these persons are expressly designated. It would indeed be possible to tighten the control.
That being said, I do not think that the Supreme Court would conclude that the legislation is invalid for the simple reason that a minister designated the members of a squad, for example, the anti-gangsterism squad. This squad has disappeared although its name was made notorious because of an investigation.
Would it be incorrect to say that all the police officers who are members of the anti-gangsterism squad of a particular police force have this authority under the legislation? It might not render the act invalid. However, let me turn the question around.
If an individual is expressly designated, then the political control is tighter because without sufficient information on the police officer to whom such powers are about to be given, the minister runs the risk of getting smeared if ever things run out of control.
Senator Joyal: Civilian control of the police was one of the key elements of your paper last summer. Let me quote from it. The title of your published text was: New Powers for the Police in the Fight Against Organized Crime. On page 53, you write the following:
It is a pity that all police forces, of which some members are empowered by the relevant authority to commit acts of a criminal nature, are not subject to civilian oversight like that which the Sûreté du Québec has set up. It is also a pity that this Sûreté du Québec review committee is to be short- lived; the legislation provides that it will operate for five years.
You say that in the end, its life span will only be four years, since the review committee will close up shop in 2005. That is precisely the problem we have with this legislation.
The relevant authority can, in some circumstances, grant authorizations, but there has to be some sort of counterbalance to this privilege given to police forces under the law. What will happen in 2005? We do not know. Clearly, the review committee applies to the Sûreté du Québec, and a very large number of people will be authorized under the legislation to commit acts defined in subclause 25(2) without any civilian oversight.
In some provinces, there is no review committee, and I believe that is the case in Prince Edward Island. Once again, committee members are not opposed to the idea of police forces being able to combat crime in general. We are not just talking about undercover operations here, we are talking about any old investigation.
The MacDonald commission held that where someone entered a residence and swiped - not to say "stole" - private property, it was not an undercover matter, but rather a purely illegal act.
We are trying to find out how the legislation will stand the test of the Supreme Court.
Imagine the following case. Assuming the review committee remains, and that following the commission of an act of this nature without any civilian oversight, the authorization granted is challenged - especially since Mentuck - the investigation is conducted by a municipal police force that is not strictly subject to an oversight mechanism like the Sûreté du Québec is, ideally. Therefore, someone must monitor the police.
Your past practice has demonstrated this. When a minister authorizes the Royal Canadian Mounted Police, the RCMP tells the minister what it wants to do. Sometimes, the minister would rather not know all the details in order to avoid being held accountable. Notice how solicitors general answer questions in the House of Commons. They often begin by saying: "Based on the information I have been given..." That is always the stock phrase to say that the police forces may not have told them the whole truth. It has happened in the past that police forces have not informed their minister as fully as they should have.
This part of the legislation, the mechanism provided for under-clause 25, seems to us to be lacking. I do not know how we are going to make sure that the legislation actually resists challenges and is useful to police forces. They do not want to wind up in the position of losing favour with the public. None of us would want that.
Ms Viau: I do not think that the issue of civilian monitoring of the police should be solved by the Criminal Code. That is not the right vehicle. Moreover, we know that with the division of constitutional powers, not all police forces come under federal jurisdiction. When we talk about the entitlement to commit offences, it is not just a matter of police officers, but also other types of officials belonging to enforcement agencies. That may make them officers of the peace in a sense, but they are not members of police forces.
Is civilian oversight necessary? Yes. Do ministers have to shoulder their responsibilities? Yes. In my opinion, past experience should make ministers be more cautious and ask the right questions. We should not put up with ministers who merely say "according to the information I have received" and "I may have been lied to." As a Canadian, I do not want to have the impression that the police are lying to their minister. That would be extremely disturbing to me.
That said, I do not think that this should lead us to introduce tighter civilian oversight into this bill. As I have said, we already have significant oversight here. For example, were a minister responsible for the police to shirk his or her responsibilities, that minister would have to be brought back into line otherwise. I cannot overemphasize the importance of training for police officers and ministers responsible for the police. In short, there are mechanisms in place. The purpose of this legislation is to grant exceptional powers to a limited number of police officers.
You referred to Prince Edward Island. Unfortunately, I am not an expert on the police nationwide. I do not know how PEI's police forces are set up. Are there municipal police officers, with the RCMP doing the major operations? That may be the case in that province. Usually, municipal police do not have to conduct major operations. They call in the RCMP, because operations that involve the commission of offences as part of an undercover operation require highly-trained police officers. Perhaps some training is done. Perhaps the Solicitor General can say, in the context of a federal-provincial-territorial meeting, that this power requires some supervision. The purpose of this legislation is not for the minister responsible for the police to grant authorizations from now on to all municipal police officers in a given province. That is not the purpose of this legislation. When you look at supervision, it is very clear that the legislator's intent is to limit the use of these powers to very specific circumstances. If any province should abuse this power, the annual reports will very quickly bring this to our attention. We must, however, make sure the annual reports are produced.
Senator Joyal: And complete -
Ms Viau: Obviously.
Senator Joyal: - since people say what suits them. You experienced this during the many hours you spent with your colleague, Mr. Poitras. One of the essential elements to monitoring the police is accessibility of information. We know that within police forces, there is a tendency to withhold information rather than to report it to one's superior and to one's political superior. Allow me to use a common expression: what we do not know cannot hurt us.
Ms Viau: Perhaps my civil law training has warped my perception. I prefer to believe that people act in good faith. I prefer to believe that chiefs of police fulfil their duties with integrity, live up to their obligations and respect their minister. If a police force does not do this, it should be brought back into line, and if need be, placed under supervision.
Unless there is evidence to the contrary, if no such abuses have been established, we must trust in our existing institutions. In this respect, I would say to you that I do not have confidence in the minister. What needs to be done for the minister to adequately monitor the police? There are a number of powers attempting to balance one another out. The power of public opinion through journalists is one power that puts pressure on the political authorities. Political authorities have a duty to be accountable and to oversee.
In spite of everything, our system, on the whole, works fairly well. This bill is well balanced. In another context, consideration could be given to the various pieces of legislation dealing with civilian monitoring of the police. Recommendations could be made and studies done to see whether there are provinces where monitoring should be increased, but not in connection with the Criminal Code. I think that would be inappropriate.
Senator Joyal: The problem is that we are granting an authorization. It is a bit like being asked to legislate to confirm a blanket authorization and at the same time saying not to worry about how that will be used until sometime later. And should there be any abuse, we will step in then. In our legal culture, the end does not justify the means, so when there is a departure from this fundamental principle, we cannot at the same time neglect the issue of oversight, by saying that it does not have to do with the Criminal Code, but rather something else. With respect to wiretapping, we did at the time call for external monitoring, external authorization.
There is no inherent fundamental contradiction in ensuring that this information, which must come before or after the commission of an act which would otherwise be criminal, is brought to the attention of a third party, who can ensure compliance with the standards the police wish to see adopted, but that they are not required to adopt given the way clause 25 is drafted.
Clause 25 does not require the Solicitor General of Canada or any province to adopt a code of practice that would frame the exercise of this power. That is the type of thing that is not included in clause 25, and as the chief commissioner of the RCMP says, "trust the police." I would love to, but we have to make sure that the system has checks and balances so that we do not need to have commissions of inquiry every 20 years. That is where our thinking around clause 25 is leading us.
Ms Viau: Clause 25 simply creates a defence. A defence with its own limitations. It is important to know who will be able to rely on this defence, and external police monitoring mechanisms are introduced. You drew a parallel with wiretapping oversight.
I discussed the risks for police officers or undercover agents. With wiretapping, there is no immediate risk to the person. You are in your office, in some building, and you connect some wires and listen to people involved in organized crime. Police officers involved in undercover operations are on their own and put their lives on the line.
That is why I have reservations about requiring external controls, even judicial controls, thereby involving other people and documents. Even if the documents are sealed, they could be opened without us knowing. Are we able to fully control what goes on? We might discover, after the fact, that a sealed document was opened and it will be too late; someone will have been killed.
For my part, in this very limited context of highly specialized operations, I am willing to trust the police force despite my experience as a commissioner.
Senator Joyal: Clearly, this is not just about undercover operations. Mr. St-Laurent gave us the example of an operation that did not have to do with infiltrating a criminal gang.
Ms Viau: Undercover operations are not limited to organized crime groups. The case law provides the example of an individual attempting to have his wife killed. This is in the wife abuse context. The police got wind of this story and set the individual in question up with a hit man. This does not involve organized crime, but it is still an undercover operation. A phony hit man wears a tape recorder and records what the individual says with a view to arresting him.
Senator Nolin: I would like to know your opinion as a lawyer about the fact that in the definition of "serious offence" in subclause 467.(1), any other offence for which the maximum punishment is imprisonment for five years or more, five years being the threshold for determining whether an offence is serious or not, may be prescribed by regulation.
Ms Viau: Strictly from the point of view of legality -
Senator Nolin: Whether the law allows for that. Is it legal?
Ms Viau: Absolutely!
Senator Nolin: Are you not concerned that Parliament is not involved in defining what is a serious offence? As it currently stands, a series of Criminal Code offences will be replaced by what may be prescribed by regulation.
Ms Viau: I do not know what the legislator intends when it refers to prescribed offences. Perhaps there are some offences for which, for the time being, the maximum punishment is less than five years, but the legislator still wanted those offences covered. If for example clause 423.1 were withdrawn from the bill, that would leave only clause 423. That is not a good example, because clause 423, as amended, involves a five year sentence. Let us assume clause 423 disappears because, in the course of the parliamentary process, members of Parliament do not agree to the amendment to clause 423 and the adoption of clause 423.(1).
Senator Nolin: Is it a kind of provision in case of oversight?
Ms Viau: An offence for which the maximum punishment is less than five years could pose problems. Perhaps that is what the legislator had in mind here. Perhaps the legislator was thinking of certain prostitution-related offences that do not necessarily involve a five-year sentence, but, in this context, could be relevant.
Senator Nolin: With respect to the expression "public interest", that can be used as an excuse for waiting a year to disclose the fact that a public officer has committed an offence, and in light of the decisions of the Supreme Court on the vagueness of this notion of public interest, in your opinion, should we keep that excuse in clause 25.4(2)(e)?
Ms Viau: That provision must be read a contrario because it is contrary to the public interest. Once again, this provision was added in case of legislative oversight. What you are referring to on the notion of public interest is the judgment dealing with the release of a person where that would not be desirable for reasons of public interest.
Senator Nolin: It is the whole notion of vagueness.
Ms Viau: Assuming the worst, if the Supreme Court decided that this provision was too vague, the provision would be struck down, but that would have no impact on the other paragraphs dealing with the other provisions.
[English]
The Chairman: Thank you very much for appearing before us. This has been a very good presentation.
Senators, our next witness is Mr. Yves Lavigne, a journalist who is appearing before us as an individual.
[Translation]
Mr. Yves Lavigne: I am honoured by your invitation and thank you for it. I have been a journalist for 25 years, and I have come to freely share with you my understanding of Bills C-24 and C-36 as well as their implications for our society.
From 1977 to 1987, I was a journalist with the Globe and Mail. From 1979 to 1982, I worked in Ottawa as a parliamentary correspondent. I followed all of the debates on the Charter of Rights and Freedoms and the Constitution. I was moved by the passion Canadians felt for our rights and freedoms.
I left the Globe and Mail in 1987 to become a freelance journalist. In doing my job, I have always been guided by the fact that the leader of any organization may be corrupted. In the past 14 years, I have published four books on organized crime: two on the Hells Angels and one on all the other groups involved in drug trafficking, that is, the Colombians, Asians, through Chinese triads or Vietnamese gangs, and Black crime gangs, whether native to North America or the Caribbean, such as the Los Angeles Blood Gangs and Toronto's Jamaican gangs.
[English]
This afternoon I will look back and I will peer ahead, and I will appeal to you, the conscience and chamber of second sober thought of the legislative arm of government.
I will ask you to wisely consider the implications of Bill C-24 and also to assess the cumulative affects of Bill C-24; Bill C-36, the Public Protection Act; and the new money laundering law. Currently under appeal in the British Columbia court, the latter would effectively require lawyers to rat out on their clients, destroying the level of trust that is necessary for the justice system to function.
I speak of these three laws while emphasizing Bill C-24, because Bill C-24 does not exist in a vacuum. The powers accorded to police under Bill C-24 will be magnified with the powers given them Bill C-36 and other powers. These things terrify me. I am very much against crime and very much pro police, but what I see happening in this country horrifies me.
Canada is defined, to itself and in the eyes of the world, by the rights and freedoms that make us a just society - not just another society. Turn back the clock on rights and equality before the law and you turn your back on the thousands who died to pave the way and safeguard these blessings. Our rights and freedoms, though penned in ink for only two decades, were long ago inscribed in blood. We are at an important juncture in our country's history. As we rise to meet challenges from without and within, we can either safeguard the elements that bind us in our diversity or we can trigger the disintegration of Confederation.
Thirty-one years, one month and 12 days ago, civil rights were suspended in Quebec with the invocation of the War Measures Act. Four hundred and ninety-seven innocent people were hauled out of their homes and businesses in handcuffs and jailed for their ideas, not for their actions.
These drastic measures were resorted to because the administration of the RCMP had failed to grasp and tackle the menace of emerging terrorism in Quebec in the 1960s. Lack of intelligence led to panic. The federal government recognized, 13 years later, in 1983, that the RCMP was in many ways inept and morally and ethically bankrupt, and stripped the force of its national security mandate. A civilian agency was created in 1984 to assume these duties.
I submit to you tonight that the current administrations of the RCMP and some large police forces across this country are unfit to fulfil their law enforcement mandate, especially in regards to combating organized crime.
The failure of law enforcement to deal adequately and effectively with organized crime - especially the Hells Angels - has little, if anything, to do with inadequate laws or funding. Laws such as Bill C-24 and Bill C-36 are drafted with the assumption that police can do the job. Increasingly, they cannot. There is a growing body of evidence to support this. Reasonable doubt is an acceptable basis for police action only if the people in question can reason. There has been a growing trend in law enforcement in the past 10 years to arrest on whim, suspicion or rumour and boast that the courts can sort things out.
Police revel in the exercise of power, not the quest for justice. They have lost sight of their role in the justice system to build a case to support their allegations. Rather, we have witnessed spectacular failed prosecutions involving unsubstantiated informant evidence. In the case of Maurice "Mom" Boucher, the leader of the Hells Angels accused of murdering two prison guards, the police did nothing to substantiate the allegations.
We have witnessed planted evidence by the RCMP that led a judge to throw out a case against the Matticks brothers in Quebec. A multi-million dollar cocaine case was derailed and the criminals walked because the RCMP decided - in order to bolster their case - to fax evidence from their own offices to the Matticks' offices so that it would be found when the place was raided. Someone forgot that when you fax something, your phone number appears on the top of the incoming document.
I recommend that you read the final report of the inquiry of Judge Poitras in Quebec. It will make you think twice about the ability of police to deal with the existing laws let alone these proposed new powers.
Organized crime and terrorism are a threat - not for lack of laws but for lack of the will to seriously and effectively tackle these problems. Any law that weakens or suspends rights and freedoms through increased police powers must include strict provisions for accountability and deterrence to abuse. The real and perceived abuses of the October Crisis in 1970 galvanized separatist sentiment in Quebec and contributed to the election of the Partie Quebecois in 1971. The same passions powered the two referendums that threatened the integrity of our country.
I was in Quebec City on the night of May 17, 1980 covering the referendum vote and saw two of our flags burned. It is very hard to describe the feelings I experienced when surrounded by people who wished to destroy my country. I stomped out the flames on one of the flags and to this day I keep on my desk a little piece of that flag with the grommet, as a reminder that our country must be defended on a daily basis.
The separatist movement has weakened in the last five years because the new generations of Quebecers do not have the negative experience to drive them emotionally to reject Canada.
The confluence of these new laws that increase police powers at the expense of civil liberties opens the door to abuses that will politicize and radicalize young Quebecers and enable them to empathize with the separatist zeal of their elders. Any abuse of these proposed police powers will lead to the secession of Quebec by the end of this decade.
September 11 must have convinced us that passion and motivation are more powerful weapons than guns. September 11 also illustrated the tragic consequences of short-sighted political decisions such as the support and training by the CIA of a young rebel in Afghanistan called Osama bin Laden, originally from Saudi Arabia, in an attempt to support U.S. foreign policy. People just did not look far enough ahead.
The rest of Canada will also react to being stripped of civil liberties. Current public support for these proposed laws are based in fear. The fear is still palpable. It has not yet gone.
The white population has not complained because those arrested so far are coloured. The only people who have complained are people from the communities that are targeted. Once whites are targeted - and they will be at some point - public resolve and support for the police and politicians will weaken, and you will become the enemy.
You must create political solutions to these potential problems now. Do not expect the courts to deal with them later. You have the ability to prevent this stuff from happening. I just hope the Commons will listen to your suggestions.
Vigilance may be the price of freedom, but the suspension of rights and putting police above the law should not be the cost of living free. No blood should ever be shed over the injudicious spilling of ink.
Bill C-24; Bill C-36, the Public Protection Act, and the money laundering law were drafted to see how much legislators and their sponsors could get away with. The public has been reassured that the courts will determine whether they are excessive. How can a court agree to hear a case of alleged civil rights violations if these rights are suspended? There is nothing for the court to hear.
I would like now to show you how police have failed miserably in the battle against the Hells Angels. Fifty-three years and eight months ago, the Hell's Angels were formed in California. They arrived in Canada on December 5, 1977. Today, they are the most successful, effective and feared criminal gang in the country. They did not expand in a vacuum. They fed on the largest-ever market for illicit drugs in the history of the world. They were also aided by police inaction.
My last book, Hells Angels at War, documents how police administrators - much to the concern of police investigators - never had the desire or the will to stop the expansion of the Hells Angels. Rather, they used the fear generated by the gang to manipulate the public, the politicians and the media to bolster their budgets and create bureaucracies. I distinguish between police administrators and investigators: investigators have always known what their job was, but administrators are a totally different breed of cop.
In 1979, the Ontario Provincial Police started a yearly fear campaign in the Toronto media, claiming they were bracing for a bloody biker war as the Hells Angels from Quebec planned to invade the province. Every year they said there was going to be blood on the streets. Over the years, other police forces joined the game and all ended their dire warnings with cap in hand and a plea for more money.
Since 1980, police reports in Alberta have warned that the Hells Angels have targeted Alberta gangs for takeover. Nothing was done to make the climate in Alberta inhospitable for the arrival of the Hells Angels.
In June 1996, Edmonton city council cut $1 million from the police chief's budget. The chief held a press conference with the biker expert from the Criminal Intelligence Service of Canada standing by him. He begged city council to give the $1 million back. He said that within two weeks the Hells Angels would be taking over the Grim Reapers, that they would set up chapters in Alberta and that citizens were at risk. The Criminal Intelligence Service of Canada - supposedly the repository for the best intelligence of police forces across the country - said, "Our best information tells us this is so."
I called them both liars on television and radio. What they were doing was corrupt. It was extortion, because the antecedents to the Hells Angels moving into that area were not in place. The Hells Angels take certain steps before they take over a gang. Nothing of that kind happened.
The action of the police chief eroded the credibility of the police in the public eye. The public said, "We are spending billions of dollars nationally on our police services, and this is the best they can come up with?" It does not take long for the public to start distrusting law enforcement and that is very sad.
The following year, the Angels were coming to town and they were taking over the Grim Reapers. Three months before the Angels planned to come into town, the police, led by the RCMP, started planting stories in the media, most of them false. They said that Sonny Barger would attend a big gathering there. Sonny Barger is the most famous Hells Angel, but he has a criminal record. He cannot get across the border. Do not tell me that the RCMP did not know that. They warned the Hells Angels in the media to stay out of Alberta, saying that they would stop them.
I warned them in 1996. They were abusing roadside stops in how they dealt with bikers. I said that they should temper their actions and approach the bikers in a smart way, because they were going to hand the Hells Angels a Charter decision that would be used against the cops from coast to coast. The police would not listen to me.
In British Columbia, there are 100 Hells Angels. There are 106 Quebec. In Quebec, they all have criminal records. In British Columbia, until this summer, none of them had a recent criminal record. Where are the Mounties?
In the summer of 1977, the B.C. Angels sent to Alberta Hells Angels without criminal records. The police stopped them four times on the highway and took their photos, et cetera. The Angels sued. On August 18, 2000, the decision came down that the police had violated their rights. They had no just cause to stop these bikers because they knew none of them had criminal records.
The Angels now have a Charter decision that they can take to court to argue that the cops have been abusing them. The Angels have stacks of files on what the police have needlessly done. The cops have been stopping them for 40 years.
Bikers do not carry drugs or guns on runs. There is always a war wagon that, interestingly, the cop have never looked for. There is always a wagon ahead of or behind the pack that carries the weapons and drugs, because the bikers know that they will be stopped.
Every police expert, including the expert from the Criminal Intelligence Service of Canada who testified at that trial, was deemed to be an amateur and incompetent by the judge. None of these people will ever again be able to testify in a court anywhere in the world regarding bikers. They did not adhere to the RCMP principles of verifying information. They spread gossip and rumours that they accepted as fact, which they then taught to new police recruits in police colleges. They warped the whole police intelligence community in the area of outlaw motorcycle gang investigations. That set the fight against bikers back 10 to 15 years. Currently, the Angels rule this country.
If the police could not respect minor laws such as those that allowed them to conduct roadside stops - to check driver's licences, for missing spokes on their wheels, for height of handle bars, none of which are fighting organized crime - then they will certainly not respect the expanded powers and immunity that would be given them through Bill C-24. If they violate very minor laws, what the hell will they do when we give them the big guns?
My last book also revealed the so-called "National Strategy to Combat Outlaw Motorcycle Gangs" as drafted by the Canadian Association of Chiefs of Police, supported by the Commissioner of the RCMP and the Criminal Intelligence Service of Canada - a branch of the RCMP. I published an August 23, 1998 document, the minutes of a meeting of the Commissioner of the RCMP, the Criminal Intelligence Service of Canada, and the police chiefs from across the country, including Chief Fantino of Toronto. Chief Fantino was the author of the National Strategy to Combat Outlaw Motorcycle Gangs. Their game plan was to devise ways to manipulate the media to upset the public to force the politicians to give the cops more money.
How effective was this national strategy that Chief Fantino implemented in February 1997? In July 1997, the Hells Angels took over Alberta. In September 1998, they took over Saskatchewan. In 1999, they formed a new chapter in British Columbia and a renewed chapter in Halifax. In 2000, they took over Manitoba. On December 30 last, they took over Ontario with 185 brand new Hells Angels. The Bandidos also moved into Ontario.
That is the great national strategy to fight bikers and when they set up that strategy, they had cap in hand again for more money.
The battle against organized crime needs to be intelligence driven. Unfortunately, contrary to popular perception, a police force is not an ongoing agency with long-term goals and mandates. These change with every promotion, and priorities are set by political whim rather than social need.
There have never been more than five cops in the City of Toronto assigned to work the biker squad. In the summer of 1998, Mel Lastman - the guy who six months later ordered the army in to shovel snow - was worried that tourists would be offended by squeegee kids and ordered the chief to put 50 cops on the street to fight squeegee kids. Ten times more cops were fighting squeegee kids than were fighting bikers on the streets of Toronto. That does not make sense. The bikers were supplying the drugs at all the raves in Toronto and all the surrounding communities.
Police do not have and may never have the intelligence capability to seriously harm organized crime. As officers are promoted every three or four years, the new cop on the job reinvents the wheel. Police intelligence files are overburdened with information, gossip, and little intelligence, which is strategic and tactical information.
Contrary to their demands for more technology, September 11 has taught us that nothing beats a good pair of shoes. The Americans spend $30 billion a year on intelligence. They had information, but no intelligence. Machines will give you information, but it is the person in the field who can tell you what it means. Right now, the cops do their jobs from cruisers.
Criminals, on the other hand, work 24 hours a day. Their knowledge and experience is cumulative over a lifetime. The Hells Angels have evolved a collective memory so that intelligence is passed on through generations of bikers. The sons of Hells Angels are now Hells Angels. Treaties were signed between the Outlaws and Bandidos in 1998 and 1999. These gangs now share intelligence internationally. They are doing a better job of it than the cops. As the bikers get their act together, the police are falling apart.
Most intelligence gathering on bikers by police consists of monitoring social events. They park outside a clubhouse on the night of the week when the guys get together to have their little meetings to talk about stuff. In Kenora, last summer, the Hells Angels held their annual meeting. There were nearly 400 cops on the other side of the street.
If you do not have someone inside talking to you, 400 cops will not do anything. They were on holidays; they collected overtime. It is a misuse of public funds. That is not fighting organized crime. When you see a biker, he is not committing a crime. They have a social life like everyone. It is not difficult to figure out. If you go into any so-called Outlaw's motorcycle shop, you will see a calendar of social events published every January by the Hells Angels. They are the little Martha Stewarts of the underworld. They have that start on the May long weekend and carry on into July, August, Labour Day, into October and every Friday the 13th of the year - if there are any that year. The police know they will be there. Because they are the only form of organized crime that tells you, on their backs, "Hey, there is a bad guy over here," they are easy to identify.
The police attend all these social events. They do not do this to the Italian Mafia, the Russian mob, the Chinese triads, the Vietnamese street gangs or the Jamaican posses. They do not do this to any other gang. They have deluded themselves into believing that chronicling the social life of a biker is combating organized crime. What they should be looking at the businesses in which these people are involved.
I was horrified to learn that Bill C-36 will give police access to national security intelligence. That intelligence will no longer be secure. I guarantee you that our foreign allies will stop sharing information with CSIS and the CSE, if they are involved at all. That is because police talk. They drink; they talk. They are yakkers. It is unacceptable. There are powers under Bill C-36 that should not include dealing with intelligence. Our country needs to be protected.
The Chairman: We are dealing here with Bill C-24, and that is all we can deal with.
There is a serious lack of political guidance and direction of law enforcement. There is minimal control over police administrators who seek to create their empires. Police chiefs have been seeking more power as a group for the past seven years, and quite determinedly for the last four years.
Since the establishment of the national strategy in 1977 police, especially in Quebec, have publicly demanded powers equivalent to the War Measures Act, which would allow them to bypass the courts and arrest and detain suspects on a hunch. They would never again have to do their job of investigating.
The anti-gang law they begged for so much is useless against the Hells Angel's. I wrote about this 14 years ago. They are structured to be impervious to an anti-gang law. The RICO Statute in the U.S. - which is a Nixon-era law - was aimed at targeting the Mafia, which is hierarchically structured, with a godfather, lieutenants and soldiers. The godfather can be proven to give orders for crimes and to plan crimes that are committed.
Once the Hells Angels realized what the RICO Statute was, hired lawyers to struck them to be impervious to this kind of law. Instead of having one godfather, one boss and a whole bunch of people underneath, some 2,500 Hells Angel's worldwide form an organizational chart like this. There are 2,500 guys across the top, each one of them with their empires down underneath them. The organization never tells them what to do. At their meetings, they never plan crimes. Most of these guys, who have known each other for 30 to 40 years, do not know each other's proper names. For example, a guy's name is Butch, and that is all he knows. A guy who imports coke may do it alone, with his associates and 20 other people who are not part of the gang but are associates or hangers-on. He may bring on another guy in the gang and those two will work together.
Arrested under the anti-gang law, they would never suffer the punishments prescribed by that law for gang activities. That is because they were doing it as two individuals who happened to belong to a gang. It seems like semantics, but that is how they walk in court. To me, that legislation just did not cut it.
In my estimation, the police chiefs have become too political and wasteful in their time and energy to fight crime. Police behaviour, as documented in my last book, actually qualifies them and the Canadian Association of Chiefs of Police to be classified as a terrorist organization under Bill C-36. Excuse me for the second reference to it.
The chiefs' quest for power has also filtered down to the rank and file. For the last three years, the Toronto Police Association has publicly threatened to investigate the personal lives of politicians, journalists and citizens who criticize police acts. They have claimed that they will publicly expose any sordid detail they turn up. Toronto police call these critics "enemies."
After the publication of Hells Angels at War, in which I revealed their national strategy, I was targeted by the Commissioner of the RCMP as a political threat to the RCMP organization. I was interrogated for three hours on November 23, 1999. I did not have to submit to it, but I wanted to know what the Mounties wanted. I was ordered to reveal my sources. I was told the RCMP wanted to know if I had in my possession any documents that would politically embarrass them at any time during the next five years. My response, briefly put, was that I have a publishing schedule of about every four years, and they would have to wait, like the general public has to wait. I was put under surveillance. My name, my phone number and my home address were given to two former associates of the Hells Angels who now work as police agents, who tried to entrap me. Police officers tried to entrap me in telephone conversations. I think it is a terrible waste of money to go after journalists in that was for pointing out frailties in our law enforcement system.
When the police play politics, they serve and protect their own interests, not those of the public. Self-serving bureaucracies must be dismantled and rebuilt.
The Chairman: Mr. Lavigne, before you finish, I would like you to tell us precisely what you think we can do with this bill that is before us.
Mr. Lavigne: I anticipated specific questions would come up later, Madam Chairman.
In regard to Bill C-24, I believe that society should not force its law enforcement officers to break the law. These people become cops to uphold the law. They sincerely believe it in their hearts. They chose this profession to walk on the right side of the law. Bill C-24 will put a lot of good-hearted police officers in a really sad position because they will worry that they will not get promoted if they do not accede to their superiors' orders to participate in some sting activity or something for which they will be given immunity. I have serious concern for these cops because they will not speak out because of fear for their careers.
To me, it is unjustifiable to put a police officer in that position. Bill C-24 turns police into outlaws. We cannot have outlaws fighting outlaws. We need the good guys fighting outlaws.
Bill C-24 is about power. Power is useless if it is not tractable, if it does not produce anything useful. If you put a larger engine in a car and cannot get the power to the back wheels, it is pointless. If you put the wrong driver behind the wheel, that driver will wipe out the car and destroy it.
I believe that Bill C-24 is an excessively powered car with questionable drivers and poor brakes. We need more checks and balances in this bill. I honestly believe that in the past month we have been witnessing the erosion of the rule of law in this country.
I think that police who are incapable, unwilling or reluctant to enforce existing workable laws are about to be granted more power and less accountability. They really should be answering to us.
I would like to leave you with one image that I hope will make you think about power and understand that money and power do not solve all problems, that there is another way to solve problems.
High jumping is a peaceful sport. If honourable senators recall, until 1968 at the Mexico Olympics the highest the bar had ever gone was seven feet, and the technique for jumping that everyone used was the straddle method. An American named Richard Fosbury startled everyone with the "Fosbury Flop" - a jump that looked both awkward and ungainly. Yet, he won a gold medal that year. If you followed the Olympics in Sydney, in 2000, the jumping height is now eight feet, and everyone used this type of jump.
The problem was the same, but the approach changed. Our most powerful weapon as a society against organized crime is our brain. I would encourage everyone to use it.
[Translation]
Senator Joyal: There appear to be undercover operations in all police forces the world over. This is not unique to Canada's police forces. In the course of these operations, police officers may be called upon to commit acts that, if committed in the course of ordinary conduct, would obviously be unacceptable in the eyes of the law or under various public statutes. How is it possible, in your view, to regulate this type of conduct, which, despite whatever criteria we may come up with, exists and must continue to exist if we wish, as you say, to use our intelligence, both information and brains, to combat organized crime effectively?
Mr. Lavigne: Patience is the solution. There are two types of undercover agent. Police agencies very rarely manage to infiltrate organized crime networks. More often, this is done by individuals the police have managed to convert. For example, an arms dealer caught by the police could enter into an agreement with them, given that he already belongs to the criminal organization, to gather information that could lead to a number of arrests.
Because of the system whereby competitions for promotions are held every three or four years within police forces, it is not in a supervisor's interest to get involved in an investigation that could last five or ten years. Yet this is the kind of commitment to prolong investigations that we need in our fight against organized crime or terrorism. If a police officer is only interested in getting a promotion, it is better for him to finish several small investigations rather than dismantling a large organization, which could take many years. A file showing several arrests over a short period of time looks much better.
I would like to see the system changed so that a police officer could get wage increases and promotions without having to take transfers. When we transfer someone from a department that specializes in investigations of bikers or in the fight against organized crime, we loose a huge amount of expertise. The new recruit who replaces him knows nothing about policing. Police officers should have the opportunity to spend 20 years investigating the same files. Many of my friends in the United States have spent 30 years investigating biker gangs and nothing else. Because of their perseverance, they have really been able to do harm to these organizations. Corruption is always possible, but you simply have to take the necessary measures to prevent it.
Police chiefs should be able to recognize the talents of each police officer and direct him into the area where he excels, be it traffic, private investigations or other areas. Everyone should be entitled to continue with his duties as long as he wishes to.
An officer who is good at investigating organized crime can make it his career until the end of his service. This strengthens his feeling of making a contribution to society. The same thing holds true for all police officers, no matter what position they have chosen. They are not there just to put in their eight hours of work per day and then go home. When they do harm to criminal organizations, they have the impression that they have accomplished something worthwhile. We can make this change without changing the law.
Senator Joyal: You said that many police officers are happy to stick to small operations, but even so, Operation Springtime 2001 turned out reasonably well. Of course, the police were not able to arrest every leader within Quebec's biker gangs, but at least one quarter of them were arrested. This was a major police operation and it achieved results. As we were told, three days later drugs were available once again, but the problem cannot be solved overnight. The police are effective as long as we provide them with a number of tools, always respecting the rule of law. I have not ruled out accepting the invitation that the Supreme Court gave to the Parliament of Canada to regulate the powers that we will be giving the police to allow certain measures that otherwise would be considered reprehensible, be it in undercover operations or as part of regular investigations. The Supreme Court, the ultimate authority of the country, the authority that interprets the Charter, did recognize that in a free and democratic society, Parliament can legislate to provide a framework for the authority that is being given under certain special circumstances to the police to commit acts that otherwise would be deemed criminal offences under the current law.
Mr. Lavigne: The main reason why Operation Springtime 2001 was successful was that it was the first time that an attorney had designed the project. This lawyer insured that all aspects of the investigation met the criteria of the law. In Quebec, some investigations must be aborted because certain legal documents have not been signed or for other similar reasons. I would like to see lawyers more involved in investigations. The Hells Angels use the best lawyers. The police must work hand in hand with the prosecutors. I would like to see judges and courts specialize in organized crime. I have had enough of covering trials where the judge does not even know what a biker is. Why should we force police officers to re-educate a judge each time a biker turns up in court? We need prosecutors who specialize in this kind of investigation or in specific aspects of organized crime.
This summer, two Hells Angels in British Columbia were found guilty of trafficking n cocaine. The provincial prosecutors refused to take part in the trial. They were afraid. It was not that the Hells Angels had threatened them. They simply were afraid. It seems to me that it would be fairly easy to set up a team of prosecutors, judges and police officers specializing in the fight against organized crime. It would be very beneficial to our society.
Senator Nolin: I do not think that you were questioning the bill, but rather the police officers or those who will be responsible for implementing this legislation. Am I right?
Mr. Lavigne: What concerns me is the powers that would be granted to police officers. Before we grant more powers to police officers, such as immunity, we must redefine our police forces. When the Hells Angels first came on the scene 53 years ago, they were a dirty, nasty bunch. They fought, they drank, they ran all over town, they slept around. They have changed since then, and our police forces have not taken this into consideration. The Hells Angels know where to go to find lawyers, accountants and other people to help them. Our police officers have what I call false pride. They do not ask questions. When they do not know something, they make jokes. Each police station should have an office with one, two or three attorneys who could educate and help police officers.
Senator Nolin: I thought it worked like that.
Senator Joyal: That is how it worked with Operation Carcajou.
Mr. Lavigne: Carcajou was unique. Society needs something like that 24 hours a day. The squad did its best work over a 12-month period from October 1995 to October 1996. Then the squabbling started! The Montreal City police decided to withdraw from the squad. There always were frictions between the Sûreté du Québec and the RCMP, particularly since the late 1980s, when an RCMP officer, Mr. Savoie, was responsible for all drug investigations in Quebec. They all fell through. He was transferred to Ottawa in 1990. The RCMP's internal investigators realized that something crooked was going on. They called him in to their office and that is when he took his revolver and shot himself in the head. A drug lord from a gang in the west that worked with a Hells Angels member had paid him a quarter of a million dollars. In my opinion, this does not mean that the RCMP is corrupt. It means that one police officer was corrupt. The Hells Angels have learned to pay off the highest ranking police officer that they can find.
Senator Nolin: Effective and intelligent police forces can enforce the law. One does not rule out the other. Our police forces are effective, but that does not mean that we should not give them the tools that the government is asking us to provide.
Mr. Lavigne: I liken it to giving a third world country modern technology. They are not ready, but I believe that they can be ready. We should help them.
[English]
Senator Moore: In your remarks, you mentioned that the police should be targeting the businesses that these organized criminals are in. We have heard from witnesses before you of the millions, if not billions, of dollars that have been generated and are out there. In the course of your research, where is this money deposited, and does Bill C-24 not give the police the tools they need to chase down and seize those monies?
Mr. Lavigne: I have always been of the opinion that Revenue Canada investigators should be the people tasked with dealing with money laundering and proceeds of crime. The untouchables who finally nailed Al Capone and who fought organized crime in the U.S. in the 1920s and 1930s were not police officers. They were Revenuers who worked for the Department of Treasury. Al Capone got nailed on tax evasion. There needs to be more cooperation. There has always been a reluctance to bring the tax people in. It is a power struggle, but I think these agencies should cooperate more.
Money laundering is, in one sense, well understood and, in another sense, truly improperly understood. The Hells Angels do not put this money into foreign bank accounts. They put it in a plastic pipe and bury it in their backyard. I carry a shovel in the trunk of my car, hoping one day I will luck out. Five million dollars was found in California in a Hells Angels' front yard in a plastic pipe.
Most criminals, the smart ones, will not flash the cash, because if they do, they will get hit on for money. They look grubby. Look at the Volpe brothers in Toronto, who were the organized crime in Ontario - the only organized crime as far as the media was concerned. One of them ran a parking lot, wore a little windbreaker and pants, and read books every day. You would not make him for an organized crime figure. They bury their money.
The Colombians are the guys with the accountants who run the money through the system. The others are pretty smart.
Senator Moore: Where is the bikers' money in Canada? Is it in banks or buried?
Mr. Lavigne: In British Columbia, they nearly spent $250,000 of it buying a seat on the Vancouver Stock Change and running a member for public office in White Rock. They own a lot of businesses.
A police officer has to prove a crime was committed. Revenue Canada just walks in and says, "Prove to me these assets are legal." This is where the police and Revenue Canada can work together. The police identify the Hells Angels, their wives, their associates, their friends, their network. Revenue Canada hits all those people: Mr. Big, his wife, his girlfriends, his family, his parents, her parents, their associates, and audits all of them. Four apartment buildings will be in his second girlfriend's name. A fleet of limousines that work the airport will be in the name of an associate. If all these people eventually get audited, the noose gets really tight. Even if no one is ever charged, they will have to forfeit all this money, which is very damaging to organized crime. Money is their power. It corrupts. It buys stuff.
I would love to see Revenue Canada do that. It is such an easy thing to do, because they know who all the bad guys are. Bikers are so obvious. Audit them. The corner stores get audited every day. Legitimate business people get audited every day. It frightens them. I think that would probably be the best way at this moment in time to hurt organized crime.
[Translation]
Senator Joyal: I would like to go back to the issue of society's control over the police, because that is an important part of your presentation. There are a number of organizations in the system that are responsible for ensuring that the police respect the law. These organizations are also responsible for ensuring that police forces respect codes of ethics and that officers are reprimanded if abuses occur. For example, the new legislation on police forces in Quebec provides for a police review board. If we give this board a mandate, as part of the powers that are granted under clause 25 of the bill, it will be able to do its work and satisfy our concern as a democratic society that the rule of law is respected and that the proper balance is maintained.
We need the police. That is absolutely clear. We recognize it. But we have to see how we can set up some controls over the police to ensure that, if the police does not fight crime efficiently, there is some organization that will make it possible for journalists to do their job and alert the public accordingly.
You don't seem to consider these organizations very important, or effective. I mentioned the Quebec provincial police review council; there are similar councils for the RCMP and in other provinces.
Mr. Lavigne: The reason is this: police officers themselves do not want to be questioned by non-police officers. They want to conduct their own investigations. They say they want to deal with their own problems. We see that in Toronto every day. The Police Association hires lawyers to go up against police officers, or internal investigators. In the past three weeks, we had the "Fink fund" scandal, where police officers were set against other police officers. They don't want to have to submit to the power and authority of the public at large. But they forget that it is the public who pays them. This is a political phenomenon within the police force, which originated in the United States, particularly in Los Angeles, where the unions are more radical. I don't know when we can get this method of dealing with police associations well established. They refuse to submit to investigations voluntarily, regardless of who would be conducting those investigations. The only thing they care about is that they don't want to be investigated by people who are not police officers. This may go away over time, but while one police officer beats up another police officer but refuses to listen to us, we get friction and we get problems.
Senator Joyal: I am taking note of what you say, because you have spent a great deal of time investigating this.
Mr. Lavigne: I would like to find some amicable way of managing the police. A way in which both sides understand each other and work towards a common goal, so that we can avoid power struggles. I do not want to take away any police powers; I simply want to ensure that those police powers are properly used. I want to ensure that my rights as a citizen are protected, and that I am not targeted - even when I criticize the police as a journalist. I am not targeting the police because it is the police. I am targeting police officers because some aspects of the way they do their jobs leave a great deal to be desired.
[English]
Senator Cools: I would like to welcome the witness to our meeting. I am very aware that the witness is from Toronto. I thought, perhaps, he might feel especially comforted to know there are some Toronto senators around the table.
The witness has said a number of things that most of us would agree are very disturbing. Many of the things that have been said by the witness easily constitute many questions, any one of which could merit serious study and serious investigation by a committee of Parliament.
There is a host of questions that I would like to put to the witness. However, the area I would like to focus on is something that I could best articulate by paraphrasing a minister who took over a particular department. His words to me were that that particular department and the department's dealings and doings and staff had been afflicted by serious political neglect on the part of previous ministers. That is a very profound statement for a minister to make when he takes over what would be considered to be a very serious, large and important ministry of state.
As the witness was speaking, I found myself focussing on what he called "doing politics." I made several notes. You talked about police chiefs doing politics, playing politics. You also suggested that the police and police chiefs suffer from a lack of political guidance. A few of the statements you made in that vein speak to the politicization of law enforcement.
We are all aware we are living in a community these days in which, yes, police chiefs are highly politicized, as are the police associations, the judges, the bar associations, the victims' groups, the departmental staff of ministries. In fact, everyone is totally politicized. The only people who are not supposed to do politics are we members of Parliament. Everyone is doing politics. They are all competing for the time in media. They are all making different press releases daily.
The Chairman: Your question, Senator Cool?
Senator Cools: It is a profound matter. The witness is speaking to the failure of politics in this country to govern law enforcement adequately. It is a profound point. When I say politics, I mean big "P" politics. The executive is failing. We know that, we work here. They tell us, "Pass the bill as is." Right?
Senator Nolin: They would never say that.
Senator Cools: Witnesses come before us and tell us they have discussed several clauses of the bill before, but we have not seen anything, and there are massive consultations. I am not complaining. I am just saying it is time for us to begin to look at our community and our whole system of politics and to come to terms with what is really going on. I think we are hampering process and ourselves in a profound way.
My question to you comes down to exactly what you have posed. How can ministers in our particular system hold these systems politically accountable? What can we as members of the Senate do, to essentially attempt to ensure that all of these people in this huge massive system are truly accountable?
I do not buy into a lot of the stuff - this surveillance board and that authority - because these are just huge bureaucracies that keep generating their own self-interest. I am, perhaps, more cynical than I used to be, but I want you to know that as you sit there and tell me about bikers not being prosecuted, I could bring forth to this committee any day of the week any time hundreds of cases of people who have been abused in legal process. For example, many fathers have been falsely accused of abusing children; or they are wrongfully convicted. It is endless. There is something gone amok somewhere. It seems to me a lot of resources are going into a lot of false prosecutions and there is a lot of abuse of judicial proceedings. Yet a lot of these individuals are raw, hardened criminals. I know the types you are talking about. I have read a lot of cases of these bikers walking about on the streets, unimpeded and untouched.
I want you to know that I am sympathetic to the men and the women who work in the field trying to apprehend these individuals, but I want to know how we can bring about some balance in this system. How can we get people to be truly accountable, besides passing yet another bill of another 200 pages with another 500 clauses?
Mr. Lavigne: Politicians basically abdicated their power at the municipal, provincial and federal level by handing out budgets and relinquishing control of these budgets. I think power or control can be re-established by taking control of the money. The police come to you or go to whomever their political masters are at whatever level and say they want a budget increase. In Toronto, it was for a helicopter.
There is always a threat that goes with the request for money. It is either an outward a threat or an implied threat that the police cannot do their job. I think the chiefs and administrators have to be told that they have to live like the rest of us, within the constraints of their budgets, and should they fail to properly administer that money, they will be held criminally negligent for the failures if anything happens.
I am not trying to be petty about it. The police say they cannot control the kids at raves and that stuff will happen if they do not get another hundred officers to patrol the downtown streets at 2 o'clock in the morning when the dance parties let out. Then all these voters out in the suburbs hammer down the politicians who do not want to lose votes, so they had give more money to the cops to hire 100 more guys to patrol the streets. I do not think politicians in general should allow themselves to be extorted that way.
Senator Cools: The average person in politics is scared to death of picking up the phone to call the Chief of Police.
Mr. Lavigne: But he is not afraid to call you. He is not afraid to be photographed with you. They are hustling. Some of the chiefs of police in this country are better politicians than the elected representatives. They hustle. I think they are wasting valuable time and energy hustling. If they put that much hustle into their jobs, into running their departments, into educating their supervisors, into giving them guidance, into sharing the power within their departments, we would have better police forces. If you look at a police chief's agenda and tally up how many meetings these guys go to and how often they are away from their town, their jurisdiction, their police force, you wonder why you need a chief.
Senator Cools: Several years ago, I had a meeting with some superintendents of police from the U.K. They all said they were getting out of policing because they were not doing enough policing; their jobs had become nothing other than a series of public relations events, lunches and dinners, one after the other. They were, as they said, "coppers," and they wanted to protect the public.
I think the witness has raised a profound point: the relationship between the chief of police, who is the Solicitor General, and the police chiefs. I think perhaps this committee should look at that at some point in time.
The Chairman: I thank you very much for appearing before us tonight.
The next panel to appear before us is from the Department of Justice. I welcome Mr. Richard Mosley.
Mr. Richard Mosley, Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice: I will make some opening remarks, followed by Mr. Kennedy, and then we will be pleased to respond to questions.
Thank you very much for the opportunity to appear before the committee on this occasion. I did want to address some of the issues and comments that have been made in the proceedings before the committee. In our view, some of the evidence reflected clear misunderstandings about Bill C-24. We should like to attempt to clarify those if we can.
With respect to criminal organization offences, it has been suggested that the participation offence that would be created under the proposed new section 467.11 does not incorporate a mens rea requirement. We would like to make it absolutely clear that a high degree of mens rea or mental element for the offence is very much a required element of 467.11.
Under this section, it must always be established that the participation or contribution of the accused in the activities of the organization was for the purpose of enhancing the criminal organization's ability to facilitate or commit. The purpose test there is essential, and it is essential to understand that that requires knowledge of what one is doing. Further, it must always be established that the participation or contribution was done knowingly and that the accused knew that the group he was participating in or contributing to was a criminal organization.
An example was given by representatives of criminal defence groups concerning farmers in Quebec who had crime gangs growing marijuana in their fields against their will. The fact that these persons may well have had a defence of duress for any offence that might be alleged on their part notwithstanding, they would not be committing the criminal organization participation offence. They would not in fact have need of an offence of duress because they would not be committing the crime. It is unlikely that it could at all be said that their unwilling compliance involved participation in the activities of the criminal organization at all, but they could not be held to have had the required purpose of enhancing the ability of the gang to facilitate or commit crime.
The references to facilitation in proposed subsection 467.11(2) dealing with those matters that do not have to be shown for the offence in proposed subsection (1) to be made out appear to have been the subject of some confusion in presentations before your committee.
The participation offence does not involve the actual facilitation of a criminal offence. There is indeed no facilitation offence in Bill C-24, unlike Bill C-36, although those who directly facilitate a crime may be caught as a party to that offence. Rather, the participation offence involves contributing to the activities of the criminal organization for the purpose of enhancing its ability to facilitate or commit a crime.
The question of facilitation involves the purpose of the crime gang, not the purpose of the participant under proposed section 467.11(1). That focusses on acting for the purpose of enhancing the ability of the gang to do crime. Nothing in subsection 467.11(2) takes away from this high degree of essential mens rea for the offence. It is simply not relevant whether the participant's actions succeed in furthering the gang's objectives. It is the purpose to do so that makes the offence. They must also do so knowingly. That is, they must know they are participating in a criminal organization although they may not know the identity of any particular member of the gang.
I wanted to comment on the intimidation offence and the origin of without lawful authority, but I understand that Professor Viau addressed that.
Senator Beaudoin: We now understand why, and I am satisfied.
Mr. Mosley: I woke up in the middle of the night last night, Senator Beaudoin and remembered to check Taschereau and found the relevant portion.
I would like to turn to the concerns expressed in respect to Campbell and Shirose, the police immunity scheme and the issue of exceptions to the reporting and notification requirements. It has been suggested that the annual reporting and notification requirements are subject to too many express limitations. These limitations refer to information that would compromise or hinder an ongoing investigation and the identity of undercover officers, endanger life or safety, prejudice a legal proceeding or otherwise be contrary to the public interest.
In our view, these are common sense exclusions and accurately reflect the applicable ministerial responsibility when conveying information to the public on criminal investigations. Concerns have also been expressed that the annual report mechanism will not serve as a mechanism for ministers to supervise and control the use of these provisions.
In response, I would first emphasize that the annual report requirement is just one of the control and accountability mechanisms applicable to the law enforcement justification. There are others.
With respect to the annual reports themselves, their role has been well established in practice in Canada. The process of creating an annual report requires a minister and his department to compile, consider and review the applicable information. This process and the information it reveals will be relevant to the exercise of the minister's oversight with respect to the police, including decisions to extend or to withdraw designations under the mechanism in this bill. The publication of a report allows for public review, which can then be the basis for questions posed to the minister, additional ministerial review and any necessary action.
With regard to virtue testing, it has been suggested that the express exclusions from the justification scheme -causing bodily harm, for example - will promote the use of virtue testing by criminal organizations. I must emphasize that regardless of such express limitations, criminals have known in the past, know now, and will always know that the police will not engage in certain conduct. This is and will be true regardless of whatever express limitations there may be in the statute. Virtue testing is a reality of undercover operations and undercover officers are trained to extricate themselves from these situations.
With respect to prosecutorial discretion, there have been suggestions that justified police illegality would be better dealt with through that means - through the use of the exercise of discretion by the Crown. The Supreme Court has observed that it is for Parliament to provide any necessary immunity in this context. It is not satisfactory to suggest that a Crown attorney can deal with this situation on a case-by-case basis.
Prosecutorial discretion would be wrong in principle in this context and ineffective. As a matter of principle, it would do fundamental damage to the rule of law to expect enforcement officers to act illegally and then to decide after the fact whether to prosecute or not. The rule of law requires that Parliament consider which actions are justified and provide the appropriate legal authority.
As a matter of effectiveness, a strategy of prosecutorial discretion is unlikely to give enforcement officers the assurance they need to resume operations. Further prosecutorial discretion fails entirely to deal with the question of abuse of process. Even if charges were not pursued against the enforcement officers participating in such investigations, the investigations and prosecutions of intended targets can still be deemed by the courts in the subsequent trial's relation to the targets of those investigations to be an abuse of the process of the court.
I suggest that it is somewhat disingenuous for witnesses to suggest to this committee that it is a solution to that problem to let each case be dealt with on a piecemeal basis and then for Parliament, after the fact, to correct the problem by passing another amendment to exempt the particular conduct that was complained of in the trial by the defence counsel.
Respecting designation of groups of officers, concerns have been expressed about allowing ministers to designate groups of officers under this law enforcement justification. Group designation does not undermine control and accountability. Factors relevant to designation, such as the level of training and experience, can be evaluated for groups as well as for individuals.
Under the scheme, a minister could establish express minimum conditions for members of a designated group. In all cases, ministers remain accountable for their designations, whether individual or of a group.
With regard to the Charter, some of the issues respecting the Charter that have been raised have been based on the misconceptions I have addressed. I hope that the concerns of honourable senators can be put to rest on that point.
Every element of this bill was given careful scrutiny before it was introduced. It is the responsibility of the Minister of Justice under the Department of Justice Act to not certify any public bill that she believes to be not in conformity with the charter. That is certainly not the case with these proposals.
I know that civilian oversight has been a particularly important issue for this committee. My colleague, Mr. Kennedy, will speak to you about the structure and powers of the civilian oversight bodies that are already in place at the federal and provincial levels. We have examined the legislation and the operations of the oversight mechanisms that are in place and believe that the police forces in Canada are currently subject to strong and effective civilian oversight.
In past days I have been speaking with the president and vice-president of the umbrella group for civilian oversight bodies in Canada, the Canadian Association of Civilian Oversight and Law Enforcement, or CACOLE. The president is Mr. Don Morrison, an officer of the legislature of the Province of British Columbia; and the vice-president is Mr. Paul Monty, who was appointed by the government of the Province of Quebec. I believe that Professor Viau spoke about the existing regime in that province. I have a letter that I would be pleased to share with the committee from them.
However, on the issue of whether there should be another federal body to oversee the implementation of Bill C-24, they say that they believe that this would result in unnecessary duplication of the oversight function and possible jurisdictional issues rather than focus on effective administration of the oversight role in their respective jurisdictions.
Earlier today, federal, provincial and territorial ministers responsible for justice were meeting here in Ottawa. One item on the agenda was the status of this bill. The Minister of Justice reported on the progress of the bill and noted the stage it had reached and where it presently rests.
Ministers were extremely concerned that Parliament approve this bill in the short term. They believe it is essential for the fight against organized crime. As a result of those concerns, they adopted unanimously a motion, which I should like to read it to you. I would be pleased to table it. I have it in both languages.
Senator Nolin: We understand what you mean. However, we do not need to have read to us a statement by ministers, unless my colleagues want it.
The Chairman: Some of us around the table have heard it; others have not. Perhaps you could read it into the record.
Mr. Mosley: It is not very long.
The Chairman: I have been informed that it is improper on both sides of the table. We will allow senators to read it in the paper tomorrow.
Mr. Mosley: This was the meeting of provincial and territorial ministers with the federal Attorney General and Solicitor General.
Senator Andreychuk: Did the meeting include ministers of justice and the federal Minister of Justice?
Mr. Mosley: That is correct.
Mr. Mosley: It is not couched in the form of an order; let me assure you of that, Madam Chairman.
Senator Cools: Perhaps someone should read it.
Senator Nolin: Why do you not have a copy of it sent to all of us?
Senator Cools: I think no, quite frankly. It has happened, the record should note that.
The Chairman: Senators, if you will excuse me, I will read it into the record.
Senator Cools: I think perhaps we should ask the chairman to read this extremely highly politicized press release.
The Chairman: I believe, Senator Cools, you may have my copy sitting in front of you. Unfortunately, I cannot read it in French, so I shall read in English.
Federal-Provincial and Territorial Ministers responsible for Justice unanimously urge the Senate of Canada to quickly pass Bill C-24 respecting organized crime. Ministers agreed that the existing control and accountability mechanisms applicable to the Law Enforcement Justification procedures in Bill C-24, under that Bill and existing federal and provincial legislation are fully sufficient to provide the necessary and proper civilian oversight for this legislation. Any additional layer of oversight would cause unnecessary confusion of roles and jurisdictional conflicts.
It is not signed. It is not formal. It was released today.
Senator Beaudoin: Was it all provinces?
The Chairman: It is federal, provincial and territorial ministers who unanimously urge this upon us.
Senator Cools: I think we should append it to the record. I also think that this committee should pass the judgment, if not now, on that particular document because it is very improper.
The Chairman: At any rate, it is now in the record. Are you through, Mr. Mosley, or have you more to add?
Mr. Mosley: I think not.
The Chairman: We have Mr. Kennedy who will make a presentation. We will then carry on, now that Mr. Mosley has been cut off at the knees.
Mr. Mosley: I have one point. Further to Mr. Lavigne's presentation, I should like simply to note that his suggestion that there need to be specialized prosecution teams to address organized crime is something that certainly has been endorsed by the government. It is part of the plan for the implementation of the additional funds that were provided by the government in the spring. In fact, there will be a new intensive prosecution strategy in relation to organized crime adopted by the Department of Justice. This is similar to a special team that has been set up in the province of Quebec addressing the same problem, the same concern about the use of prosecutorial resources in this area.
Mr. Paul E. Kennedy, Senior Assistant Deputy Solicitor General, Office of SADSG, Police and Security, Solicitor General Canada: Madam Chairman, before I get into my presentation, I would like to speak to some of the comments made by the last speaker. I suppose if I had not been in the room, I would not have to respond. However, because I am the Senior Assistant Deputy Solicitor General, I am responsible in the department for policing and national security. Therefore, I cannot sit here mute.
I want to put on the record that I have been in the public service in the public safety area for 28 years, 25 of those with the Department of Justice as prosecutor and in various roles of that nature. My current duties allow me to have a fairly good knowledge of policing in Canada and to attend international fora. Therefore, I have some sense as to what happens in other jurisdictions, and in particular the reputation that Canada and its police officers have in that fora.
Just to correct one thing, the last speaker referred to a case that was subject to the investigation of the Poitras Commission and he mentioned that the RCMP planted evidence. The RCMP was not involved in that activity. It was the Sûreté du Québec, which is what precipitated that investigation. To the credit of the Quebec Government, they responded very forcefully and very thoroughly. I think the Sûreté du Québec itself is a much- improved organization for the inquiry that was taken and the actions taken by the government. So there is a factual record on the table I would like to correct.
Because I have occasion to meet ambassadors from other countries and to participate in international fora, I have had the pleasure to be head of delegations for a number of international events. The reputation of Canadian police forces is without parallel. It really is. People want to know how we have a police force about which the public write articles to newspapers saying, "We want police officers. We want more. We want resources." That does not occur in other countries. It is a rare occurrence. That did not come out by accident. There is a reason for it.
We have models of community policing. Our people are asked to go other jurisdictions to show how the community policing models are actually done. In terms of models of oversight and accountability, they have asked us how they are done. We do that for our lawyers in the prosecution. We do that for Correctional Services. We do that for police officers.
We have international policing, where all police forces go overseas to do those activities. We are asked to train others. To say the least, the reputation is without parallel. Compared with the rest of the world it is without parallel and is a very unique reputation.
With some of the models that are in place - and Mr. Mosley has referred to them - police recognize that it is a challenging environment in which to work, particularly in the post-Charter environment. We have had four-year long investigations in which millions of dollars have been expended. If you do not do it right, you have wasted millions and millions of dollars. The trials sometimes last longer than the investigations. The police are anxious that those things be done right. We have Crowns who work with the police during the investigation of complex cases. The police ask for it and welcome it.
The big cases are done with joint force operations. They must be done that way in order to have effective sharing of information. Thirteen proceeds of crime units have been established federally. There is a reference to Revenue Canada. Those units are involved with various agencies including customs and the revenue agency. There are forensic accountants involved.
If there is not a proceeds of crime criminal case, the matter is turned over to the Canada Customs and Revenue Agency. They follow up with a revenue assessment - either civilly on based on tax evasion, as the case may be. There is that collaboration.
All of those techniques are used. We are aware that Al Capone was not discovered only today. The Canada Customs and Revenue Agency has a permanent SI unit that investigates what we used to call net worth cases. If you have a lifestyle that you cannot justify, they do a net worth assessment. We use all the tools available to us.
I wanted to raise that to say that we are aware of all of the techniques employed; none of us fell off the turnip truck. It may be that a journalist can tell us how to do policing better. Everyone is open to ideas. It is a challenging environment. Every time we pass a law, people respond. We seize property used for criminal activity. Therefore, people use rental property.
There is a dynamic, a yin and a yang. It is a struggle that goes on forever. That is why we want to improve the laws. Bill C-95 was the first attempt. Bill C-24 will be an improvement. We know what we are up against. We know that we are dealing with an evolving, smart target. In summary, there is room for improvement but we are doing okay. We are at least, I hope, holding our own. I hope that we will gain.
Clause 2 of Bill C-24 would amend sections 25.1 through to section 25.4 of the act. That is the government's response to Campbell and Shirose. We clearly think this is a requirement, or we would not be here. We have tried to strike an appropriate and balanced regime, which is a very difficult thing. There are those who say that police simply should not break the law. They see white hats and black hats. We would all feel much more comfortable if the world could be divided that way. However, it cannot be and that is why we have this document before us.
We want to have a model where the white hats keep wearing the white hats. To date, it has been the case that a police officer breaks the law and waits for a prosecutor not to charge him and hopes that an individual does not lay a private charge against him, as they can. We do not want the officer to have to carry the burden of breaking the law to enforce the law while the rest of us benefit.
In our consultations, academics have urged that we leave it that way. I say that we cannot. I can think of nothing more corrupting to a police force than having us sit back while police officers assume the burden of deciding what laws they can break and, when they have gone too far, being charged. A Crown attorney will not advise them that they can break a law, because that would be conspiracy to break the law. We need a model that is clear.
Since Campbell and Shirose, there is no ambiguity. The officer knows that if he breaks the law the evidence is tainted and cannot be used. It is no longer a case of it being minor and of using the Mack model. If the law is broken to acquire the evidence, that evidence is tainted and it will be argued that it ought not be admitted.
There is now a definite line. That is why we are asking parliamentarians to bear the responsibility that the officers have borne to date. The officer has taken the chance. If he steps too far, he will be charged. We have to decide where the line is. I know this is hard. If it were not hard, we would not be here. It was hard for us to come up with this model, it was hard for the police to accept it, and it will be hard for you to decide where you draw the line. I accept that.
We do have some accountability. We have designation by the ministers. More importantly, it has to be for the purpose of the investigation and it has to be reasonable and proportionate. Even if the officer thinks he is within the model, if his behaviour is not reasonable and proportionate, he runs a risk. We have left them carrying a burden. This is only a criterion, not a green light. It is a green light if you stay in certain lanes. If an officer steps outside that lane and someone says the action is not reasonable and proportionate, he has a problem.
In Canada, we have, appropriately, extensive oversight and review bodies for our agencies. There is probably nothing in the world that parallels what we do. It has resulted in what I call the 85 per cent solution. In Canada, we do not have totally effective laws or practices, because we are a democracy. We cannot afford to have a 100 per cent solution. If we did, we would have a totalitarian state. We do not want that, so we always have something a bit less.
In this case, we have this regime in which we have drawn a line. Others may say that we should let the police do it, with state immunity. We have chosen instead the regime that you see here, which results in virtue testing and things of that nature. That is part of our cost of remaining a democracy. Conversely, if you do not give the police some tools, we will not have even the 85 per cent solution. We live in an imperfect world.
We have talked about the public annual report, the parliamentary review, the internal process and the training that will be put in place. As well, there is the risk of a criminal charge if they do not comply with the regime.
In addition to all of these safeguards, there is a series of external review bodies that have been put in place through the years. The RCMP has its Public Complaints Commission. There will always be pundits who say that it does not work, that it could work better or that it is not effective. That seems to be the way we are in Canada. We like to beat up on ourselves.
The annual report of that commission indicates that last year it conducted approximately 1,200 investigations or reviews. That seems to be a fairly good number. They were not asleep at the switch or just generating work for themselves. As a matter of fact, in terms of efficacy, they cleaned up a backlog that had developed, because we want a prompt system with a review conducted and a response to the complainant.
In addition to individual complaints, the commission conducts public interest inquires. As we all know, those can be very extensive and highly publicized with great notoriety and accountability.
In each of the other provinces, for example, Quebec, annual reports are provided to the minister of public safety on misconduct and administration of criminal investigations. They have established an inspection service for all police forces. They inspect each force at least one every five years under order of the minister of public security.
With regard to the RCMP, in addition to the Public Complaints Commission, under section 24.1 of the RCMP Act the Solicitor General can appoint a board of inquiry to investigate and report on any matter pertaining to the organization's training, conduct, performance of duties, discipline and so on. That would clearly capture the kinds of things we are talking about here.
The minister has tools. We talked about political accountability. The minister has powerful tools available to him if he is not happy with what he is getting. That board of inquiry can subpoena witnesses, get documents and take testimony under oath. They are very powerful tools.
I will not belabour it because materials have already been provided. Prince Edward Island has the RCMP, so they would be subject to the Police Complaints Commission. The City of Charlottetown has a municipal police force that is subject to the review by the chief of police. I will not go in detail other than to say there are tonnes of them currently in place. They are very active and thorough. There is accountability beyond all the things you have heard about. This process is one that is designed to have matters go to a criminal court where you have a vigorous advocate who is part of the defence who will clearly put the state on trial and the officer's conduct on trial. Public scrutiny is the whole thing this process is driven to.
Those are my submissions to you.
Senator Beaudoin: What you have said is only for Bill C-24, is it not?
Mr. Mosley: Yes. The comments that both of us made were directed to Bill C-24, yes.
Senator Beaudoin: We have full power in the criminal law domain. You have nothing against the consultation of the provinces because the administration of justice comes under the provincial Attorney General. I do not see any difficulty there.
The only point that was left by you, Mr. Mosley, and you said Mr. Kennedy would speak about it, was a question where you used the word "immunity." I could be wrong. There is a discretion in the administration of justice in our country. It is left with the Crown Attorney. It is left with the provincial Attorney General. It is left also with the Attorney General of Canada. What word did you use to refer to that? In our system, the last word - the Minister of Justice, of course - is subject to a vote of confidence in the House of Commons. This is our British parliamentary system.
Senator Cools: There will not be a vote of confidence on anyone for generations.
Senator Beaudoin: Perhaps I should not use that, but it is a good example. What did you have in mind when you referred to that problem, Mr. Mosley?
Mr. Mosley: The use of discretion? Your witnesses from the defence bar suggested that one way to deal with the problem that is addressed by proposed section 25.1 in this bill is to rely on the Crown's discretion. We heard that time and time again from those who do not and have never exercised that discretion. The Crown can stay the charge or the Crown can choose not to proceed. It is the exercise of prosecutorial discretion, and the Crown of course has that.
Senator Beaudoin: There is no doubt about that.
Mr. Mosley: In our view, it would be an abuse of the exercise of that discretion to tell the police, "Don't worry. Go out and conduct your investigation as you see fit in the circumstances as they arise. If you happen to break a law, we will not charge you." That is an improper exercise, in our view, and it is certainly contrary to the guidelines that are issued to Crown Attorneys in this country about how they would exercise that discretion.
That is the inference from presentations made to your committee about how to deal with the problem. It is totally unacceptable.
Senator Beaudoin: Someone said that the police do not need it anyway. They might need it for certain categories, but not for very important charges or crimes. That is what they said. If I understood you correctly, you said you do not want that discretion to include the committing of crimes.
Mr. Mosley: We believe it cannot be extended to the police in advance of the commission of what would be a crime. It would be improper for the Crown to say, "Go out and commit a crime. Do not worry. I will not charge you."
Senator Beaudoin: I agree with that. That would be very improper. That is what the bill is saying, I understand.
Mr. Mosley: Not at all. This is a mechanism within the rule of law. It operates as a justification in law. This is not as a result of the exercise of the discretion of a particular Crown attorney applied to a particular police officer.
Senator Beaudoin: In other words, what you have described is the system as it is according to our values and our conventions.
Mr. Mosley: It is not the system as I understand it. I believe it is certainly not the system that Crown Attorneys would accept if you were to ask, "Do you tell the police, $Do not worry, if you happen to break a law in the course of your investigation, you will not be prosecuted.'?" They do not do that. If there is an individual anywhere in the country that does that, that is improper, and they should be disciplined for doing it.
Senator Beaudoin: I agree with that. Nothing has changed in the legislation in that area.
Mr. Mosley: The bill proposes a mechanism that would remove the occasion for that abuse occurring.
Senator Beaudoin: If the bill has that effect, I cannot agree more with the bill, because we must stop that possibility. If it is that, we do not have any problem.
[Translation]
Senator Nolin: Why have all provisions concerning organized crime not been brought together in a single section of the Criminal Code, as was done for terrorism under Bill C-36? This would have made it easier for lawyers and judges to do their work.
[English]
Mr. Mosley: Mr. Bartlett has reminded me that one of the practical problems with doing that, which on first impression makes a great deal of sense, is that many of the provisions of the code that relate to organized crime are scattered throughout and are general in application, for example, those dealing with electronic surveillance or wiretapping.
[Translation]
Senator Nolin: Serious offences are defined as offences penalized by five years' imprisonment, or offences designated by a regulation. Does it not worry you that Cabinet is filling in for Parliament, and that Cabinet is designating offences? Are you not bothered by that?
[English]
Mr. William Bartlett, Counsel, Criminal Law Policy Section, Department of Justice: The definition already includes all indictable offences where the punishment is five years or more. The ability to prescribe by regulations adds the capacity to add certain offences where the penalty is less but the nature of the offence is such that it is what is often called a "signature offence" of organized crime, for example, gambling or prostitution offences. These offences will change over time. This is a flexible instrument to reach down to those offences that are organized crime in nature, but are not of the conceptual category of indictable offence punishable by five years or more.
The Chairman: To follow on what Senator Nolin was saying, I sometimes think that when we are studying bills, it would be much easier if we had the original version of the bill before us. In the original versions, the changes are underlined and you can see what exists in the law and what is new.
Senator Joyal: I do not wish to be lacking in respect for the Department of Justice and for the authority that the Minister of Justice represents in our system. However, when you tell us that the Minister of Justice has certified this bill in conformity with the Charter of Rights and Freedoms, as the minister is required to do under her constituting authority, it is a presumption for us that the bill is in conformity. However, that does not relieve us of our responsibility to look carefully at some clauses in bills that some of us might find exorbitant from the common law practice. We were told that police could break the law in the past, and now they cannot break the law.
As an example, the extradition bill was certified by the Department of Justice, yet clause 44 of that bill was found to be contrary to the Charter. I do not say that to be contrary, however, it is our responsibility as parliamentarians to do that. As most of my colleagues, I respect very much the work that you do. You work under pressure and that is understandable. We have a role and when I am requested to pass a bill quickly, I have almost the contrary reaction. We would rather be prudent than hasty in doing our work. Once these provisions are enacted, they will stay there for a long time.
As much as I understand the enthusiasm of Mr. Kennedy about the civilian oversight that exists in the system, I understand that the federal-provincial-territorial ministers, including Quebec, have urged us to adopt this bill. The problem I have with the system in Quebec is that the new Police Act, which was adopted in 2000, has a provision to establish a "conseil de surveillance" that has the responsibility to prepare an annual report. The only problem is that this conseil de surveillance has a life of five years. After five years, it is over. I will read the provision.
[Translation]
The Conseil de surveillance des activités de la Sûreté du Québec, in other words, the Quebec provincial police review council, will cease operating on June 16, 2005, or on any later date that the government determines to enable the council to finish dealing with ongoing cases.
[English]
In other words, this is not new business but the opposite. They wind up and it is over.
I have a press release in front of me that says that there is proper civilian oversight. I would agree that it might be for four years in Quebec, but not more than that. I have not gone through the other provincial surveillance councils that may exist in other jurisdictions, in Ontario, British Columbia and so forth.
However, here I am requested as a legislator to respect the Charter. One of the essential elements of the rule of law in our country is to maintain the civilian control over the police. On November 15, in the Mentuck judgment, the Supreme Court said: "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."
Unless the Attorney General of Quebec, who concurred with that press release, says that the conseil de surveillance will be re-established, when I read Quebec's police act, I have to say, "Yes, but what happens after that?"
This is an important question. You told us you were with the department 25 years ago, so you were in the department at the time of the McDonald Commission. Those were not happy days for the RCMP or for the department. I was in Parliament at that time. A complaint commission acts on the complaint of a citizen who feels badly treated, but it is not a monitoring surveillance body as such.
As much as I agree that a public complaints commission is needed and that it should have some specific authority power to investigate, nevertheless it is not the day-to-day monitoring of the operation under the basis of the surveillance that civilians control. The Supreme Court does not say "judicial control," it says "civilian control." When someone goes to court, the judge is in control. However, civilian control operates with civilians and that is not the justice system; it is a para-body of Parliament.
That is my problem with this bill. I do not trust your long-term experience with the department and so forth. We legislate here for years to come. In years to come, we might be affected by other responsibilities, but those powers will stay and the need for civilian control will still be there.
Mr. Mosley: I understand the conseil de surveillance, although it does have a five-year lifespan, it can be renewed; you are quite right.
Senator Joyal: It may be renewed, but the statute does not provide for that.
Mr. Kennedy: There was reference to the McDonald Commission, the last time I was here. It is different when you deal with national security matters, although it was the RCMP police force, it was the security service of the RCMP. We all remember the events - the barn burning and prophylactic activity to stop two alleged terrorist organizations or their members from meeting each other. Those matters are different from what we are talking about here. We are talking about a law enforcement investigation's object is to take someone to court to be subject to public scrutiny. It is not a case of a national security investigation trying to stop two alleged terrorist groups from getting together.
The CSIS Act created unique institutions, the Security Intelligence Review Committee and the Inspector General. In an ideal world, national security matters would not be in the public domain. In matters of security Privy Councillors who have security clearance will have access to all the files. They will review these matters, because in the normal course, these incidents will not come to court. The regimes that fall under this bill do come to court.
With reference to the Quebec legislation, I have not studied it in as much detail as you have, senator, but I believe the special supervisory board was set up for the Sûreté du Québec. As you say, it has a five-year mandate.
The other elements I was speaking to - and I did not go into any great detail - were in regard to the annual report. These are items that, to my understanding, are permanent. They provide the minister with an annual report dealing with misconduct in criminal investigations. They also deal with the inspection service that was set up, and special investigations of a police force by the minister of public security or by an investigator appointed by the minister, where that investigator has the powers of a commissioner under the Quebec Inquiries Act and leads to a report setting out recommendations, and so on. There is also a provision for ministerial monitoring. He has to be notified. Under ministerial monitoring, it is my understanding that in regard to allegations of a criminal offence by officers, the minister of public security must be notified of the allegations and kept up to date on the progress of the file. When the file is completed, the report is transmitted to the minister and he can order that a file be reopened.
It is not as if Quebec has an oversight mechanism that has a five-year limit, after which time it disappears and there is no mechanism in place for the minister of public security in Quebec to find out what the police are doing. There are, as in all other jurisdictions, mechanisms that are in place. It is fairly clear that in the province of Quebec, following the unfortunate events that were investigated by the Poitras commission, that something extra had to be done vis-à-vis activities with the Sûreté du Québec. That is why a special supervisory board was set up.
The note that I have here indicates that the special board's role is to analyze and make recommendations on the internal affairs of the security of Quebec; give its opinion on the various annual reports given by the Sûreté du Québec on discipline, misconduct and criminal conduct by officers, wiretaps and searches; give its opinion on the administration of the Sûreté du Québec's criminal investigations and carry out other studies as directed by the minister of public security. Of course, they may question members of the Sûreté du Québec and examine records and documents. It will produce an annual report that is tabled by the minister in the National Assembly.
In addition to the architecture that is in place, there is, obviously, a magnifying glass that focussed in for five years on an organization with very thorough things, extra duties saying, "You check and check all sorts of stuff and give me your independent advice." That was complementary to, I think, a systemic response to a problem. Clearly, there is architecture in place and will continue to be in place.
Senator Joyal: If it were permanent, one could say, "There is the body there," at least for the QPP; but there are many other police groups in Quebec that will be empowered by proposed section 25 who do not fall under the jurisdiction of the "conseil de surveillance." In other words, for four years Quebec has had for the QPP a "conseil de surveillance" who will look into them and make annual reports the way you have described. I applaud that. I am happy about that.
As you said, the only thing they will check is the alleged criminal conduct of the police, which is exactly what we are saying here. We will give some immunity to the police forces when they do their investigation, not only the QPP but the municipal police, too. What we have to understand here clearly is that this body, unfortunately, has a lifespan of four years.
Senator Fraser: For only one police force.
Senator Joyal: For only one police force. Let us think, as I say, positively. Let us imagine that this "conseil de surveillance" will apply to police forces in Quebec, including municipal police forces since they are under provincial jurisdiction, and that it will be in place on a permanent basis. I would agree. There is a body that is professional, that is vested in the statute of the legislative assembly of Quebec with the authority, and the minister will have the responsibility to answer for that body.
The problem we have now is that that body, unfortunately, is short-lived. As I am telling you, we have to look into the other police forces that are in power all across Canada - not only for organized crime, but for any kind of investigation they deem proper to undertake. They will have those powers.
I have read the judgments of the Supreme Court over the course of the last several years. We can see the trend of the court. The trend of the Supreme Court in Campbell and Shirose is probably the most visible. In that decision, the court is of the opinion that the rule of law applies to the police and it applies to the police in the way that the police have to be scrutinized. That is a recent decision.
There is another decision of the Supreme Court that is pending in which the issues are exactly the same. When I adopt a statute today quickly, as requested, I want to satisfy myself that we members of the Standing Senate Committee on Legal and Constitutional Affairs are taking the right kind of decision. I want to be sure that we are satisfied that the rule of law, for which you have the prime responsibility to maintain in the legislation, is satisfied according to today's standards.
Mr. Mosley: I certainly regret having caused the concern about improper interference in your work. There was no intention of doing that.
However, there is some frustration on the part of those in law enforcement in Canada because this issue for them has been a live issue for three years. There has been endless discussion about this issue. The White Paper that was issued, for example, led to rounds of debates with the stakeholders, including much of civil society in Canada who have provided input. We brought national organizations together at a round table and there was a healthy, lively debate.
I understand for your purposes it has been a short period of time. I can well appreciate that you do not wish to rush to judgment on the bill. However, the frustration that has motivated the expression of concern today was simply based on that long debate, which has preceded your consideration of the bill.
Let me say also that I certainly agree with everything you said about the need for effective civilian oversight of the police and their operations. With the greatest of respect, I do not know what you may propose with respect to this bill. However, based on discussions and questions put to your witnesses, it appears that what you are thinking of is a form of additional parliamentary oversight. That could cause, in our system with two levels of government and two levels of ministerial accountability, some real potential conflicts. Sorting out who is responsible for what will be difficult. If there is a problem with a particular police force, who will look into it?
What this Canadian association of civilian oversight law enforcement is working toward is strengthening effective civilian oversight in this country of the police. There are disparities between the jurisdictions as to how good and how effective it is. That will not be resolved overnight.
However, inserting into the mix a new player, possibly - for the purposes of speculation - an officer of Parliament, in my respectful suggestion will not address that need. It may well cause confusion. It may well lead to jurisdictions saying, "We are not accountable to this officer of Parliament. We have a constitutional responsibility for the administration of justice within our boundaries."
It is for us to say - this is hypothetical, I am speaking in the voice of a provincial government - that it is our responsibility to oversee the police and it is our responsibility to ensure that there is an effective mechanism in this province. We may have questions about how they do that and it may not be that each jurisdiction is advanced to the stage where it should be, but that question can be addressed.
For example, we have undertaken to bring together, as early as possible, all of the civilian oversight bodies in Canada to discuss the implications of Bill C-24, Bill C-36 and whatever law enforcement implications there may be in Bill C-42. We have undertaken to do that in January or February. We want to talk about these matters. How can it be done properly?
The concern is - and this is with the greatest of respect and appreciation for what you are saying because I think everyone here agrees - that we must have effective civilian oversight of the police, without question. There have been abuses in this country, despite my friend's statement. I was in Australia in August. In comparison to the Australian police, the police in Canada look very good. However, to arrive at a better system across the country will take a great deal of work and it will not be resolved by an amendment to this bill.
Senator Andreychuk: I was more troubled the longer you spoke, Mr. Mosley, and the more uncomfortable I became about civilian oversight. I do not think the test is to talk about how good we are in comparison with the rest of the world. The test is whether it is good for the citizens of Canada.
I come from a province where we are undergoing a massive scrutiny of what went wrong in our justice system. This gives me very little confidence that civilian oversight has occurred properly and will. This is not because of the people involved; they have the best of intentions.
This is a very difficult field. We have put so many complex issues on the backs of the police in legislation and other complex issues. It is a more complex world, but we have moved and moved. I am not just worried about Quebec. I am worried about what civilian authority has been doing. Basically, they have been tabling statistical reports because there has been a comfort level that there has been a system in which the police must work within the law. There is a double-check that the civilian oversight can catch it if it is going wrong. If not, the courts will catch it or the complaints will catch it.
We are moving into unchartered territory here. To say that a civilian oversight will be sufficient is quite a stretch for me. I would rather you had said that there is a compelling case of necessity for this, and that there is some risk factor and that we will have to scrutinize this legislation very closely in the coming years to see whether it will be done the way it should.
For example, it is not the cases that will end up in the courts that trouble me. I am troubled by those cases that will never get to the courts, which have been investigated and have abuses in them. Abuses leave a trail. We have systems that we have been trying to hone year in and year out, and still citizens do not understand.
We have a whole Aboriginal community that continually tells us the concepts of law we put forward to them are foreign and unknown, and here we are veering from some of the fundamental issues in our criminal law and we say some civilian group will know? You only need to read what the SIRC review says about its scrutiny of CSIS. It is difficult, complex work to get the information that is necessary to be able to scrutinize the system properly.
I do not know if that is a question or just a reaction. It is not as simple and it is not as rosy. This is one of the fundamental things. The rule of law has marked our society and we are dramatically shifting away from the rule of law as it has been recognized. We should recognize that as a society and take ownership of that, not gloss it over and say that it is okay because we will have these checks and balances. I am not that convinced.
Mr. Mosley: We strongly believe that this legislation is necessary. This bill is the product of several years of work based on a conclusion reached that we have a serious problem with organized crime in this country. You have heard all of the statements about that. I do not need to repeat them.
It is not just civilian oversight. We believe there are a number of different means of accountability. Some of them will be in the courts, where an officer has relied on the justification to do something, whatever it may be. It may be absolutely banal - a minor contravention of the law. The defence counsel will scrutinize what that officer did in minute detail in order to establish that the justification does not apply. Why? If it does not apply then the evidence that may be obtained is tainted under the Campbell and Shirose principles, and it goes out and the case is won.
The exercise of this by the police will continue to get extraordinarily close scrutiny in the courts because it is just the way our system works. The old statement is that if you can prove that the constable erred then the evidence will go out under our Charter. The test under the Charter is bringing the administration of justice into disrepute. The object of the exercise is to get the evidence excluded and the charged person walks. Judicial scrutiny will be an important part of the accountability of the police in their application of these provisions.
In regard to the internal controls, you have heard from the police. They are very well aware that if these provisions are misapplied what Parliament has given Parliament can take away. Inevitably, there will be mistakes. People will do things they should not, but the entire apparatus of these forces will be geared to trying to ensure that that does not happen. They are well aware that there will be the spotlight of public scrutiny. This has been the subject of endless debate with the senior ranks of the police forces. They know that they are asking Parliament to give them the tools to do the job. If they abuse those tools they can be removed.
Mr. Kennedy: I think we have lived through this long enough that we start to think the same way. Mr. Mosley said this problem was around for three or four years. In fact, it has been around since 1991 in the Bond decision, where the Supreme Court refused to grant leave to rule on an issue dealing with legality. We have been sitting around for 10 years waiting for this thing to be resolved. In 1997, we touched it in the drug legislation, and then finally when the decision came down in Campbell and Shirose they put some pay to the matter. We have been trying to get rulings for 10 years. The courts did a little bit here, a little bit there, but never really pronounced on it. It is a long time to have this hanging over one's head.
In terms the adequacy of civilian oversight; I think you should not pin all the weight just on the adequacy of civilian oversight. What are we actually talking about? We are talking about adequacy of opportunities for the acts of the officer to be exposed. The civilian oversight itself may come, after an inquiry, with an action. That action may result in civil lawsuits, criminal actions that are laid, and administrative sanctions against individuals and/or organizations. That is what you are looking at. You have the police community, and then you have a series of windows looking into it. These oversight agencies are just one of those windows. A police internal investigation, depending on the jurisdiction, if you are satisfied with the adequacy, is one window. The individual complainant can go off on his own hook and do it. The disclosure laws in criminal matters now are quite extensive. A person wanting to indicate that a police officer did something improper will ask for disclosure of all the documents. Mr. Mosley will tell you we have had large cases like this where we delivered tonnes of paper in terms of disclosure.
Are there many windows? There are many windows in terms of looking at the police organization.
In terms of the compelling case of necessity, we did not want to gild the lily because we have already spoken to that on a number of occasions. I assume the police did. The reality is that undercover officers are important to this kind of investigation, or the use of agents inside who you have turned. They will not just give the evidence for you; they will continue operating. They will be doing things potentially as they continue in that guise as agents that are unlawful.
There has to be some way you can get in there and do these kinds of things. Passive techniques such as wiretaps are becoming increasingly more difficult, with encryption and the sophistication of technologies out there. Sophisticated criminals use code words and all sorts of techniques. They are the first ones to have the latest toys.
At the end of the day, you always go back to the tried and true methods: undercover officers or agents or things of that nature. Is there a case for necessity? Yes, there is. Is it important? Yes, it is. Do we need it? Yes, and that is why we are here.
Look at your oversight in terms of that other paradigm - the opportunity to expose action so there is accountability.
Senator Cools: I thank the witnesses for what I think is an earnest presentation. I do have, as I said before, much sympathy for the police in the field who are fighting crime. I think what is coming clear as this committee has been proceeding and as you have been speaking is that there is a high degree of uneasiness among committee members about many of the bills that we are receiving from your department. I think that is becoming increasingly clear.
You talked about the long debate that precedes such a bill. We hear about this all the time. We hear about these meetings with stakeholders and the consultations and so on. We know nothing of that. Parliament has no knowledge of that. You are asking us to take you on faith that these powers are really needed, but other than your say-so, no real evidence has been put before the committee. For example, Parliament has not undertaken a review of undercover police activities in this country for a while. When I say "say-so," I do not mean to sound cavalier, but other than what was brought forth before this committee about undercover activities, the committee and Parliament really knows very, very little.
I have no doubt that you have reams of paper and boxes of information and so on, but we do not have that information. I do not know how we will proceed in the future to bridge this enormous difference, but it really has to be bridged.
Mr. Mosley: I believe we did provide some material relating to the nature of the problem, a binder of Criminal Intelligence Service Canada reports going back several years. I believe you have heard from witnesses on the nature of the problem.
Your point is well taken. We would be delighted to have more opportunity for dialogue before proposals are developed. The White Paper was issued in May or June of 1999, and that was issued broadly. This committee, if it had wished, could have presumably done a review of that white paper.
The Chairman: Mr. Mosley, you may not realize that Senate committees can only do what they are mandated to do by the Senate. We cannot just on our own decide we will do something.
Mr. Mosley: I appreciate that.
Senator Cools: I think Mr. Mosley has taken the point.
Other than the general expression of concern for how we proceed in the future, I accept and understand that police need powers, and exceptional powers are necessary for exceptional circumstances. I believe many of them do dangerous work.
I am still uncomfortable with delegating what I view as really prerogative powers - whether you call it immunity or whatever you call it - to officers in the field. Could we not have found a way to keep this power directly in the hands of the minister or the ministers?
Mr. Mosley: Are you referring to the designation process?
Senator Cools: In particular, I am looking at the same set of clauses, the designation section: clause 2, the amendment to section 25 of the Criminal Code. I am sympathetic, but I am still troubled. I understand why it is scripted the way it is. I understand that a great deal of consideration has gone into it, but I am a great believer in the upholding of prerogative powers. I think minister's signatures do marvels.
Mr. Mosley: They do, but the ministers, despite their extensive authority, are not prescient. They cannot anticipate. They cannot be everywhere.
More to the point, they really cannot anticipate what might arise in a particular undercover situation. This is the same issue with respect to whether judicial authorization would work. In essence, it will not work because it is not practically feasible to authorize something in advance when you do not know what will happen. You do not know when are you sending the officer out to a particular meeting that he may be asked to deal in contraband at that particular meeting.
From a practical perspective, you have to equip the officer with the necessary authority because the number of situations that can arise is practically infinite. The judicial model, or even a ministerial approval model in advance, works when you know precisely what will happen. In that case, you can authorize that conduct within the constraints of particular conditions, but in this world, you do not know.
Senator Cools: You were mostly responding to proposed section 25.1. subsection 9 on page 6. Please look at proposed section 25.1, subparagraph 8 on page 5. The lawyers raised concerns about that.
It reads:
A public officer is justified in committing an act or omission - or in directing the commission of an act or omission under subsection (10) - that would otherwise constitute an offence if the public officer ...
It goes on with parts (a), (b) and (c). There was much concern expressed by the bar on this particular section.
Could you settle that?
Mr. Bartlett: Senator, proposed section 25.1 (8) is the basic justification element of the scheme once the officer is designated. It sets up the test of reasonability and probability in all the circumstances. I think the bar's point was simply that at that point that is the control that is left - the reasonability/proportionality test that is set out in that subsection - and it does not have the additional requirements that, for example, damage to property has with an authorization from a senior official.
When they questioned this, they were simply questioning the essential element of the scheme in terms of what the basic controls are - a designation other than the accountability scheme. It is a designation plus the applicable test at that point and, in their view, that was not sufficient.
Senator Cools: How does subparagraph (8) relate to (9), which says that no public officer is justified to do certain things unless a senior official personally authorizes them in?
Mr. Bartlett: Subsection (9) adds the additional element of an authorization by a senior official when certain acts are involved. Those acts are damage to property or directing an agent to commit any act. Due to the seriousness of damage to property and because of the elements involved when an agent is being used, that requires a level of authorization from a senior official additional to what is already required under subsection (8), that being that the officer be designated and that every act be reasonable and proportional in the circumstances.
Senator Cools: It is still quite troubling. I suspect that one problem that we have is that you people have been attempting to draft in such a way as to avoid ugly words like "immunity," "prerogative" and so on. I am a great believer in the upholding of the law of prerogative. It is an ancient set of laws. I worry that here we will be unintentionally creating new problems. The Campbell and Shirose decision would not have been anticipated even a few years ago.
The Chairman: Something has just been pointed out to me that may cause us some problems. At the top of page 6, under proposed section 25.1 (8)(a), there is a difference between the English and the French versions.
Senator Joyal: The English version says "investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;" The French version says "Il agit dans le cadre soit d'une enquête relative à des activités criminelles ou à une infraction à une loi fédérale[...]" The first part is the same as in the English. However, it continues as "soit du contrôle d'application d'une telle loi;"
[Translation]
The enforcement of the statute applies to the entire statute. It does not apply solely to provisions relating to criminal activity.
[English]
The Chairman: Would it not be more "the enforcement of ..."?
Senator Joyal: There is a difference there.
[Translation]
Senator Nolin: The "Act of Parliament" referred to in the last part of clause 25.1(8)(a) is an act of the Canadian Parliament; in other words, a federal statute.
Senator Joyal: The term implementation control is used. This term is very general in nature.
Senator Nolin: Yes, it applies to all federal legislation.
Senator Joyal: But in one case, there is an investigation and an offence, whereas in the other case, we are talking about implementation control for legislation. That can mean anything. It refers to the way the legislation is implemented.
Senator Beaudoin: I think that it is indeed general: "implementation control for legislation of this nature."
Senator Nolin: What is implementation control? Does it refer to section 18 of the Federal Court Act?
[English]
Senator Joyal: Senator Pearson suggests that we get clarification tomorrow and I agree with that.
The Chairman: Since it is very late, we will give you overnight to get a clarification on that section, because we are going to clause-by-clause consideration of this bill tomorrow morning.
The committee will now proceed in camera on consideration of our report on the regulation proposed by the Chief Electoral Officer.
The committee proceeded in camera.