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.
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.
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
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
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
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
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
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
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.
The Chairman: Our next witness is Mr. Frank Ryder from the Ontario
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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.
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
Senator Beaudoin: We will take your suggestion into account.
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
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
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
Senator Pearson: This bill will take out some of them, will it not?
Mr. Ryan: Yes, it will remove some of those barriers.
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.
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.
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
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
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
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
Mr. St-Laurent: The changes we want to make in Bill C-24 have to do with
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
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
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.
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
Our next witness is Ms Louise Viau, who is a law professor at the University of
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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?
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.
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
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
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
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
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
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.
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
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 -
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.
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.
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.
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
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.
Viau: Strictly from the point of view of legality -
Senator Nolin: Whether the law allows for that. Is it legal?
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.
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
Senator Nolin: Is it a kind of provision in case of oversight?
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)?
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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.
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.
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?
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.
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.
In other words, this is not new business but the opposite. They wind up and it
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
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
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
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
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
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
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
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
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
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
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.
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
The enforcement of the statute applies to the entire statute. It does not apply
solely to provisions relating to criminal activity.
The Chairman: Would it not be more "the enforcement of ..."?
Senator Joyal: There is a difference there.
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
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?
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.