Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11, Evidence - May 28, 2014
OTTAWA, Wednesday, May 28, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to
which was referred Bill C-394, An Act to amend the Criminal Code and the
National Defence Act (criminal organization recruitment), met this day at
4:17 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good day. Welcome, colleagues, invited guests and
members of the general public who are following today's proceedings of the
Senate Standing Committee on Legal and Constitutional Affairs.
Today we are continuing our study on Bill C-394, An Act to amend the
Criminal Code and the National Defence Act (criminal organization
recruitment). This bill amends the Criminal Code to make it an offence to
recruit, solicit, encourage, coerce or invite a person to join a criminal
organization. It establishes a penalty for that offence and a more severe
penalty for the recruitment of persons who are under 18 years of age. This
is our fourth meeting on the legislation.
Our first witness today is returning to complete his testimony, which was
interrupted by a vote previously. Please welcome back the sponsor of Bill
C-394, Mr. Parm Gill, Member of Parliament for Brampton—Springdale.
Mr. Gill, thank you again. Unless you have some brief comments, we will
just proceed directly to questions.
Parm Gill, Member of Parliament for Brampton—Springdale, sponsor of
the bill: Absolutely.
Senator Baker: Thank you, Mr. Gill, for coming again.
Mr. Gill: My pleasure.
Senator Baker: Congratulations on your efforts to realize
something in the Criminal Code pertaining to the matter that you are
We heard from the Minister of Justice for the Province of Manitoba since
you were here, and in his presentation to the Commons committee he suggested
the inclusion of the word "coerce" in the bill because, as he explained,
young people are coerced to enter these organizations, these gangs.
When he appeared before this committee, the committee said that the word
"coerce" is included. He wasn't aware of it when he gave his presentation
because he had asked that the word "coerce" be included in the bill. He
said, "Oh," and he looked at the bill. Then it was pointed out to him that
it was put in the section of the bill that did not deal with young people
under the age of 18.
The assumption was made by the questioner that perhaps the Commons
committee had erred in putting "coerce" in the wrong place. The problem with
it is that the mandatory minimum sentences, as this bill is written, will
not apply to young people who are coerced. It will only apply to those young
people who are "encouraged," the other words that are there.
The Minister of Justice for Manitoba recognized the error. He told the
committee, yes, this is an error. Do you have any comments on that, Mr.
Mr. Gill: Yes, and thank you for that question.
The amendment to add the word "coerce" was made by the committee on the
House of Commons side. My understanding is it was added in one section and
not in the other. It was added to proposed section 467.111 at the Justice
and Human Rights Committee on the House of Commons side.
I want to say, in the absence of the amendment, will this bill contain a
gap that would have a negative effect? My understanding is no. Some cases of
coercion would likely be captured by other elements such as recruitment,
solicitation, encouragement or invitation in the Criminal Code.
I'm not a lawyer and I'm no expert at this. For consistency's sake,
should that word be added at some point in time? Absolutely. My
understanding is the government is comfortable in introducing that or making
that amendment down the road to make it consistent, but is it absolutely
If we were to now say that we should add the word "coerce" and amend this
bill, this bill then has to be sent back to the House of Commons. It would
obviously further delay this bill. As I am now the Parliamentary Secretary
to the Minister of Veterans Affairs, I would no longer be able to sponsor
the bill in the house, if you understand the difficulty.
Senator Baker: Yes, I can see your problems with it.
As the Minister of Justice from Manitoba pointed out, it was his
intention to have it pertain to young people and that the mandatory minimum
would apply to "coerce." It doesn't make much sense not to have the
mandatory minimum apply to coercion but have it apply to "encourages."
I now have your response on that: You don't want an amendment because it
would have to go back to the House of Commons.
There is an omission in the bill, a consequential amendment. I don't know
if you've been apprised of the problem, but you have several sections of the
bill that refer to just the inclusion of 467.111, which is your amendment to
various sections of the Criminal Code. The section applying to warrants and
notification was left out. The drafters of the bill inadvertently missed
that particular change. Are you aware of it and do you suggest that we just
leave it as it is?
Mr. Gill: I am aware of it. To answer your question, the
government, in good faith, actually tried to move this amendment at the
report stage on the House of Commons side, but it was ruled out of order by
Senator Baker: Why?
Mr. Gill: Because it apparently changes the scope of the bill.
Senator Baker: I see.
Mr. Gill: That was the reason.
I have been assured that that part eventually can be fixed at a later
date with a different piece of government legislation. Again, my
understanding is that does not affect the intent of what I am proposing and
what's being proposed in Bill C-394 here.
It is captured. It does everything that we intend to do, but you are
absolutely right. Can these amendments be made at a later date, maybe in a
government piece of legislation just to be consistent and cover it from all
Senator Plett: Thank you, Mr. Gill. You have, in part at least,
answered my questions in answering Senator Baker. I'm not going to belabour
all the questions we had the last time.
I do have two questions surrounding this. Senator Baker rightfully says
that the word "coerced" has been left out, omitted; it was an accident. But
out of the terms that we have in the bill — "invites, solicits, encourages
"— and then if the word "coerce" was in there, "coerce" would be one of the
stronger words. Probably if you were coerced, chances are pretty good you
had been invited or encouraged first.
I support us trying to amend this later on. And possibly even at
clause-by-clause stage we might want to put an observation forward that
would encourage the government to change this down the road.
The fact that somebody has been invited or encouraged would probably come
before coercion in most cases, would it not?
Mr. Gill: Yes, senator, you're absolutely right. All of the other
elements that are included in the bill, as I mentioned, such as recruitment,
solicitation, encouragement, invitation, all of these things have to happen
Also the concept of coercion, to my knowledge, does not have a real
definition in the dictionary. You are absolutely right. All of the elements
covered would have to have happened before. Would it be a good idea
eventually at some point in time to have the word "coercion" included? I
don't oppose that.
As I mentioned earlier, I've been assured that both of these amendments
we're discussing don't actually have a real meaning to the bill. For
consistency's sake, yes, absolutely.
It is also my understanding that Justice officials will appear when you
go to clause-by-clause consideration, and they will probably be better
positioned to answer technical questions in terms of whether it has any
bearing, any impact on the actual bill or what sort of difference it would
Senator Plett: I'm quite confident that Senator Baker will pose
that question to Justice officials. If he doesn't, I will.
As Senator Baker said, we heard from the Minister of Justice from
Manitoba who was very supportive of the legislation. He raised the issue of
coercion but was very supportive of the bill. Police officers — and we are
hearing from more police officers later today — and law enforcement people
have been very supportive of this bill. From your conversations with law
enforcement officers, in addition to being supportive, have they also stated
a sense of urgency and that, as we are sitting here today debating this
legislation, children are being invited to join gangs? Have they expressed
that delaying this legislation in any way would further enhance that and
that it would be better to pass the legislation unamended and then work
towards changing some of the technical details later on?
Mr. Gill: Absolutely, senator. As I mentioned last time when I
appeared before the committee, I did a very thorough consultation throughout
the country before coming up with the language in the bill. The Minister of
Justice for the Province of Manitoba was one of the individuals that I
consulted and met with because it is a serious problem, as you know, in
Winnipeg and many other parts of the country, including Vancouver, B.C.,
obviously, the GTA, Regina and so on.
I include the law enforcement agencies, the boards of education that I
had an opportunity to consult with, my constituents to whom I sent out a
survey, and many other Canadians when I say that I am constantly being asked
about this bill, to this day, in terms of what is going on. What is the
As everyone on this committee can understand, trying to get a bill
through the House of Commons and then through the Senate is not easy,
especially a private member's bill. It is actually sometimes difficult for
me to explain to the stakeholders and individuals who are affected, who are
very anxious to see this piece of legislation become law, what the holdup is
and what stage it is at and how we're trying to get this through a bit at a
So I would really like to urge the committee to please expedite this
legislation. Pass this bill through the committee as soon as possible,
ideally unamended so that it doesn't actually have to go back to the House
of Commons, which would further delay the process. That would be my request,
and I'm sure all of the stakeholders and Canadians would agree with that.
Senator Joyal: Mr. Gill, thank you for the answer you have given
to my colleague Senator Baker in relation to the amendment that I was
convinced would have been needed to rationalize the code in relation to
196(5).Do you have the ruling of the Speaker of the House of Commons in
relation to the unacceptability of this amendment?
Mr. Gill: I do not have that with me, but it is public record. I
would be happy to get that for you.
Senator Joyal: I was not in the House of Commons, nor did I have
access because that's the new information. When you appeared last time, I
put this specific question to you in relation to that, and you were not able
to answer because there was a vote. I think you had to leave. Of course, we
had to defer to that.
Mr. Gill: Yes.
Senator Joyal: In the decision of the Speaker, do you remember if
other amendments to the bill were under consideration by the Speaker? I
understand that somebody would have raised a point of order to the
amendments being unacceptable. The Speaker would not have ruled by himself.
Somebody would have raised a point of order, as I understand the procedure.
The Speaker would have taken it under advisement and then would have given
his decision. In that decision, do you remember if there were other aspects
of the bill that were under consideration that were deemed out of order?
Mr. Gill: Even though it was a while ago, I do not recall any.
Senator Joyal: Who raised that objection in the House of Commons
in relation to 196(5)?
Mr. Gill: It wasn't actually in the House of Commons. It was still
at the committee stage.
Senator Joyal: Oh, it was at the committee stage. I thought that
it was by the Speaker himself.
Mr. Gill: It was at the committee stage.
Senator Joyal: It was not reinstated at third reading when the
bill was referred back to the —
Mr. Gill: My understanding is that it was ruled out of order at
the committee stage by the Speaker, so the committee —
Senator Joyal: Not the Speaker, the chair, because the Speaker is
Mr. Gill: It was not the chair of the committee that ruled it out
of order. At the committee, the government tried to propose this amendment.
Senator Joyal: Which we accept.
Mr. Gill: Yes, and then the committee tried to get this in as
well, but —
Senator Baker: Report stage.
Mr. Gill: No, sorry not — can I quickly check my notes if you will
Senator Joyal: Yes.
Mr. Gill: Report stage, yes, you are correct.
Senator Baker: Yes.
Mr. Gill: That's when the Speaker ruled it out of order.
Senator Joyal: You mean the Speaker in the House of Commons?
Mr. Gill: Yes.
Senator Joyal: Were other amendments being considered by the
Speaker at that time? Because it seems to me to be odd. I want to debate the
procedural issue because 196(5)(a) is in the same section as 196(5)
that your bill amends, as you know. It is clause 6 of the bill. So, in other
words, the section was under consideration by the House. It was not a new
section that was brought in the bill. It was the same section that was
included in the bill. It is an element that was added in 213 when that
section was amended. It was not yet amended when you first drafted your
bill, which is totally right. Nobody can think what will happen a year down
the road once you start the legislative process.
From what I know of the procedure, when a section of the Criminal Code is
under consideration, that whole section is under consideration, especially
when it is just to make sure that it is consequential. We're not adding
something; we're making it more consequential, which is normally accepted as
a matter of law. There are hundreds of precedents in relation to that.
Of course, we're not bound by a decision of the Speaker of the House of
Commons on that. We can amend the bill. There's nothing that prevents us
from amending the bill at this stage in relation to that consequential
amendment, which would strengthen the bill in my opinion, as I said to you
when you appeared. It would not weaken the bill. As you yourself mentioned,
the Department of Justice is of the same opinion, even though I was not
aware that the Department of Justice supported that amendment. It seems to
me, reading the legislation, that it is needed to make the bill
consequential in relation to the Criminal Code.
Of course, I will read a decision of the Speakers in relation to that,
but as far as the Senate is concerned, we can amend that section because it
is under consideration by us. It is not as if we were adding a new section
to the bill. We were making a consequential amendment to a section that is
already amended in front of us. That's why I feel that there's something
there that seems to be very strange procedurally.
Mr. Gill: Obviously, I can't control the decisions or the rulings
made by the Speaker, but what I can tell you is that if the amendments are
proposed at the Senate committee level and then, eventually, this bill is
sent back to the House of Commons, I can no longer sponsor this bill, take
it back to the House.
Therefore, this bill will not pass and become law as is. As I mentioned
earlier, for the consistency matter, yes, absolutely, it would be a good
idea to make these amendments. I have been assured that the government would
gladly make these changes in future government legislation to address this
issue, but Canadians want this bill passed as is.
If we are going to introduce any amendments, this is going to delay the
bill. It is not going to pass. We won't even get what we have compared to
what we're hoping for.
Senator Batters: Mr. Gill, perhaps you could provide a transcript
of what the Speaker said in finding that proposed section out of order. That
might provide some assistance to Senator Joyal.
Mr. Gill: I would be happy to look into that.
Senator Batters: You were explaining in a bit more detail to
Senator Joyal about why a particular amendment would kill the bill. You
spoke to that earlier, as well, when Senator Plett asked you about it, but
could you explain for people watching at home and for the record why the
fact that you are a parliamentary secretary means that an amendment would
kill the bill as it currently exists and would significantly delay it
because it would have to start from square one? Could you explain a little
bit more about that?
Mr. Gill: Yes, absolutely.
Private members' bills are private members' bills. As you know, ministers
and parliamentary secretaries are not able to put forward a private member's
bill. I had the opportunity to put this bill forward in the house when I was
not a parliamentary secretary. Thankfully, my number was early enough that I
was able to get this bill through the house in time.
Last summer, as you know, I was appointed a parliamentary secretary by
the Prime Minister. As a parliamentary secretary, the rules of the House of
Commons won't allow me to receive this bill if it were to come back to the
house from the Senate with any sort of amendment. That means basically this
bill would be killed. It would die. I cannot take it back. Those are just
the rules of the House of Commons. It's not something I decide or make up. I
Senator Batters: I appreciate that. The type of amendment being
discussed dealing with the word "coercion," perhaps that could be included
in a miscellaneous statutes amendment bill, which deals with a whole host of
different types of acts.
In the speech you gave in the House of Commons, or maybe to the
committee, dealing with this, you referred to your experience in talking to
the Regina Anti-Gang Services people, a group called RAGS. I had some
experience dealing with that particular group when I was the justice
minister's chief of staff in Saskatchewan and I know about the great work
they do. Could you elaborate for us on the experience you had in dealing
Mr. Gill: It was very moving, to be honest with you. That's where
I had the opportunity to meet current and former gang members. What the
organization does is assist individuals who want to leave criminal
organizations. I had the opportunity to hear about the experiences of these
young men that I met at this organization and the stories they shared with
me in terms of how they were recruited into gangs and what sort of impact
this lifestyle has had on them and their families. I heard about them trying
to get out of these criminal organizations or gangs, the street language,
the difficulties they faced.
This was the first time I learned that there's something called "minutes
in" and "minutes out." When someone joins a gang, basically there is a level
of beating that takes place, non-stop, by other gang members. In these
beatings you could possibly be killed. The same thing happens when you are
trying to leave gangs. You have what they call "minutes" or "beating out,"
and that doesn't just happen once. That happens all the time. So wherever
you are spotted as a former gang member — you're no longer part of that
organization or you don't want to be — you receive these beatings. I saw the
scars. I saw the lifestyle that they were going into, including the facility
this organization was working out of. There were gunshots; you could see the
traces everywhere. It was basically like under lock-down, the level of
security that was there.
Another story I heard from one of the members is where he told me how he
recruited his younger siblings. He would bring them with him to carry the
drugs and the weapons, all of these things. It was quite an eye-opener for
me, I must say.
These were very bright individuals. One of the things they did when we
met, we watched a video they had put together about how they see gangs and
what are some of the pros and cons of being a member of a gang. This was all
written out on a large piece of paper. I took all of that with me. It's
actually framed and put in my office because it was such an interesting
experience for me.
Senator Batters: Thank you.
Senator Dagenais: Thank you, Mr. Gill. I believe that the purpose
of this bill is, obviously, to protect youth. We know that criminal
organizations are inclined to modernize and at times to break the laws,
which we want to make that much harder on them. This bill targets young
people who are recruited in the major cities. You know as well as I that
criminal organizations often use young people because they are minors and
that they have them commit violent crimes, knowing full well that the
sentences those youth receive will be much more lenient, and that will be
very useful to those organizations. I would like to hear what you have to
say on the subject.
Mr. Gill: Absolutely. Part of the reason these gangs are reaching
out to younger and younger people is exactly because under our justice
system, if you are under the age of 12, you are treated very differently.
The consequences are obviously far less as compared to an adult. I heard
stories where as a young as seven- and eight-year-old kids are being
As a father of three kids myself, with nephews and nieces, I am extremely
concerned about where this issue is headed, this problem and how it is
growing nationally. Unless we are to take steps and do something about it,
this will continue to grow.
The other thing we have to understand is some people have asked me,
"Well, how would you go about finding individuals who are recruiting these
young people into a criminal organization; how will the police do this?" I
can tell you that during my consultations it was the police officers
themselves who told me that they know what is going on. They know
individuals who are targeting young people or other Canadians to recruit
them into gangs, but there is no law in place currently in our books that
can hold these individuals accountable for that. The police officer can't
actually charge an individual with an offence and then bring them to
justice. That currently does not exist.
I shared my story when I was last in Winnipeg visiting the Boys and Girls
Club. They told me that as kids leave their organization there are gang
members standing 50 feet from the front door waiting to recruit them. As
they're leaving there's nothing the organization, police officers or anybody
can do because it's not against the law. Those are some of the issues.
I will share another story. It really hurts me. I saw an article today in
the Brampton Guardian when I was sitting in the house. Last night
police agencies arrested approximately 50 gang members and took in weapons,
drugs, hard drugs — cocaine, marijuana, you name it. There were at least six
to seven different police services that were involved. They included the
OPP, Peel region, Metro, Durham, Halton, you name it. Anytime you see these
stories, honestly, as a father it really bothers me.
I understand this bill is not going to fix all the problems in the world,
but my intent is if we can even save one life, it will all be worthwhile.
Senator Plett: This will largely be a repeat of the question I
asked before, and it's only because Senator Joyal was quite forceful in his
questioning about the section of the Criminal Code that he was talking
about. I find it strange, and in fact not good, that Senator Joyal is
concerned about making this a stronger bill. Usually they are opposed to the
mandatory minimums. Here he is suggesting that we make this a better bill
and a stronger bill, so I'm hoping that he will support us at the end in
doing just that.
You said we are hearing from officials tomorrow. They have assured you
that they will deal with some of the technical issues. They have assured you
that some of these issues raised by both Senators Baker and Joyal can be
dealt with as amendments down the road. They need not be dealt with now.
Again, I believe our largest concern as senators should be protecting
Canadians overall, especially young children. Canadians overall want this
legislation, and you, as a politician, need to try to do what Canadians want
to do. We should as well. So I would like you to simply tell us, one more
time, that this in fact can be corrected, that this bill can be strengthened
down the road, that we can make the corrections that we need to make to
improve it and that, indeed, we are doing something that is urgently
required and that Canadians overall want.
Mr. Gill: Thank you for the question, senator.
Yes, I can assure this committee that, for both of the two amendments
that are being discussed, I've been assured that this is a very easy fix and
that it can be done in future government legislation.
The other thing I already mentioned is that both of these amendments,
even though, yes, I agree that they would clarify and possibly make the bill
a bit stronger, do not have, in no way, shape or form, a real impact on the
bill itself, the way it is right now before the committee. It addresses all
of the issues and all of the concerns that the stakeholders have brought
forward — the Canadians and other organizations that I have had the
opportunity to speak with — and that can be addressed in future legislation
by the government. It's a very easy fix. I've been assured of that.
Senator Plett: I won't hold you to it, but I know that you will be
very supportive of doing that after we pass this legislation.
Mr. Gill: Absolutely, I will.
Senator Joyal: I won't fall into the trap opened by Senator Plett
for me to do politicking because that's not the way this committee usually
works, so I will come back to the issue.
As I understand the procedure, Mr. Gill, in the House of Commons, when
the Speaker rules that a proposal for an amendment at report stage is
inadmissible, the reasons given by the Speaker for his decision are given to
the person who sponsors the amendments. Were you the one sponsoring the
Mr. Gill: No, I was not.
Senator Joyal: Who was sponsoring the amendments at that time?
Because it was your bill, as you stated before.
Mr. Gill: The amendments, in my understanding, were put forward by
the government. This was a private member's bill, so I did not propose those
Senator Joyal: As Senator Batters invited you to do, could you
provide us, as soon as possible, with the reasoning given by the Speaker
because, as I understand the procedure, it is not printed in the Hansard of
the House of Commons. It was given orally or in writing, and it was given to
the sponsor of the amendments. In that case, if you say that it was the
government, it would have been probably the Parliamentary Secretary to the
Minister of Justice at that time. That was the way that the procedure would
have been followed.
Mr. Gill: I'd be more than happy to look into that and figure out
where it's at and do my best to get it to you.
Senator Joyal: The other point that you raised that puzzled me is
that it will kill the bill if it's returned to the house. The way I
understand the procedure in the house is that when a bill is amended and
returned to the house, it comes to one single vote. Your bill passed through
the house, of course, because it is in front of us. Can you tell us who
voted in favour of it in the house? Was it on division or accepted outright
by the House of Commons?
Mr. Gill: It was supported by the government, obviously. It was
supported by the official opposition as well. The Liberal Party opposed it.
Senator Joyal: In other words, if it were to return to the house
for that correction, one can expect that the government side would support
it, that the official opposition side would support it and that, in fact,
the procedure is a single vote. You don't have to go back to all the
sections of the bill and reopen the debate. It's a yes or no vote. So I
don't understand how you conclude outright that it would immediately be the
death of the bill.
Mr. Gill: I wouldn't be able to take the bill back as a
parliamentary secretary. I'm no longer —
Senator Joyal: I understand that, but the bill has been voted on.
It's now the bill of the House of Commons. Anyone on your side could answer
for the bill. Your name doesn't appear any more on the bill. We have
received, and, as you say, it's blank here. Your name doesn't appear any
more on the bill. If a bill amending the Criminal Code is returned by the
Senate to the House of Commons, I would certainly expect that, having
received the support of the government or the opposition, there would be
somebody on the government side, probably the representative of the Minister
of Justice, to support the bill and to support the amendment.
Mr. Gill: That is not my understanding. In the answers that I saw
to the questions I asked, that is the information that was provided to me by
the experts in terms of how it can be dealt with when it comes back. I was
told that I cannot sponsor, and the bill would basically die.
The other thing you have to realize is that it would be one thing if
these possible amendments were going to change the bill considerably or have
a real impact. I know you're going to have the Justice officials tomorrow
that can deal with these technical issues and explain to you what impact
that amendment would or wouldn't have. I'm not really the expert in that
area, but I have been assured that these amendments don't have any real
impact. Other than delaying the passage of this bill, it doesn't do any real
good to the bill.
Senator Joyal: I'm humbly of a different opinion. As you will
understand, if the Department of Justice shares the opinion that this
amendment is needed to make the Criminal Code coherent, it seems to me this
is a real reason to support the nature of the amendment and the importance
of the amendment.
Mr. Gill: Sure, it would be nice to have that in for consistency's
sake, but all of these things that we're discussing have been captured by
other elements in the bill.
Senator Joyal: You have to understand that the court that will
have to interpret that bill will interpret it as is. There is an obvious
defect in it that the Department of Justice considered should be filled and
I know that you also support the objective, as you said, and it should be
done. The question is: Since we have the bill in front of us, should we not
do it now? That's essentially the question that I am concerned with. We're
called to amend the Criminal Code, which is, as you know, five centimetres
thick, and, when we add a section to the code, we want to ensure that it is
coherent for any judge who will have to interpret it. That's essentially why
we're here. We're a chamber of second sober thought who review and suggest
changes that maintain the objective of what you've said and make sure that
the judges who will be called to interpret it and the police service that
will have to apply it know that all the sections of the Criminal Code
complement one another. That's essentially what we have in mind.
Mr. Gill: I'm sure the Justice officials, when they appear, will
be happy to address all of these technical concerns that you have in terms
of what sort of impact it may possibly have when the police officers or the
judges are considering. As I mentioned, I have been assured that there is no
real impact whether or not we make the amendment now, but, absolutely, for
consistency's sake, that can be addressed at a later date and would not
necessarily affect the bill.
The Chair: Before we move on to Senator Baker, who has now changed
his mind and would like to ask a question, the clerk is advising me, based
on issues that have come before this committee in the past, that the sponsor
of the bill in the house is supposed to move concurrence of Senate
amendments. We're also advised that the information we have is that a
parliamentary secretary cannot move it and the rules don't allow anyone else
to do it — their rules. It has to be in terms of the order of precedence
with the private member's legislation. So what the witness is saying seems
to be quite accurate.
Senator Baker: Yes, but one further point added on to that, Mr.
Gill, is that the sponsor can be changed by motion in the House of Commons.
Unfortunately, in the situation that you are in, it probably requires — if
in fact you are correct in the assessment you have made; and the chair here,
I'm sure, is correct — it may require unanimous consent. That's probably
where you would have a problem.
I have one final question for you. There's one overriding factor that
concerns me about the bill, and it is this: When you change the law with the
object of shutting down gangs or of putting in penalties for persons who
participate in or encourage people into gangs, that's one thing to put that
into the code as representing gang enrolment and so on.
The word "gang" is not used in your legislation, and I'm wondering
whether you are comfortable in not proposing an amendment to the Criminal
Code to address gangs and enrolment in gangs in which the normal procedures
of our Canadian rights and freedoms apply, the standard warrants apply, the
standard wiretaps apply and the standard notification of people who have
been wiretapped applies.
You have put it into a provision in which the terrorism legislation
identified that the warrants, the notifications of terrorists and the
complicated procedures of organized crime, a criminal organization, which
we're having really big problems with, the police will tell you, in
prosecuting under those provisions — why would you have chosen such a strong
section of the Criminal Code to allow wiretaps without the normal
notification after they're concluded? Why would you not have put a section
in the Criminal Code that just dealt with what you're concerned about and
not gone with the sledgehammer approach? I suppose you are going to answer
and say, "Look, this is how serious the problem is," but I would like to
hear that from you.
Senator Plett: Hear, hear.
Mr. Gill: Absolutely. I mentioned to you that I am a proud father
of three kids. I have many nephews and nieces. I see this problem in my
community growing and young people losing their lives, and these criminal
organizations are terrorizing our communities.
People are afraid. People are afraid to go out of their houses. People
are afraid to let their kids out on the streets because there are obviously
certain neighbourhoods where this problem is a lot worse than others. But
this problem exists throughout the country. You can no longer say that if I
moved into a particular neighbourhood, I or my family would be immune to
this problem. That is not the case.
This is a very serious problem. During my consultation, when I consulted
with boards of education and law enforcement agencies and other
organizations, I heard time and time again that this issue needs to be
Examples were given to me where there is this perception that people who
get involved in criminal organizations come from a rough background, maybe
come from families where their kids are being raised by single parents. That
is no longer the case. Live examples were shared with me during the
consultation where you have both parents who are professionals, who are well
educated, who come from good families, but their kids end up getting
involved in the criminal organization. They ended up being recruited into
the criminal organizations, which not only ruined the lives of these young
people but also the entire family, the neighbourhood.
I cited some studies that have been conducted, including by the RCMP and
the Department of Justice, which clearly outlined that this problem is
growing by the day. I gave an example of our Region of Peel, where in 2004
roughly 23 gangs or criminal organizations were identified by the police.
There are well over a hundred right now.
Again, I don't say for a second that my bill is going to fix all of these
problems; absolutely not. But is this another tool in the tool box for the
law enforcement agencies and for our justice system to hold these
individuals accountable? Absolutely. That's all I'm trying to do.
The Chair: Thank you, Mr. Gill. I appreciate your appearance here
As our second panel today, I'm pleased to introduce the Brotherhood of
Police in Quebec City, Bernard Lerhe, President; from the Quebec City Police
Service, Captain François Collin; and from the Canadian Council of Criminal
Defence Lawyers, Nadia Liva.
Ms. Liva, I believe you will begin with an opening statement, and we will
then move to Mr. Lerhe and then on to Mr. Collin. The floor is yours.
Nadia Liva, Representative, Canadian Council of Criminal Defence
Lawyers: Thank you. I'm delighted to appear before you today on behalf
of the Canadian Council of Criminal Defence Lawyers. Founded 22 years ago,
the same year I began practising law, the CCCDL offers a national
perspective and voice on criminal justice issues and has been honoured to
attend and assist the Senate over the years. We are grateful for the
opportunity to address the Senate committee in relation to Bill C-394,
specifically clause 9, which proposes to amend the Criminal Code by adding
section 467.111 to the section of the code dealing with the participation in
activities of criminal organizations.
The goals of the proposed amendment are admirable. To stop the
recruitment of any individual, especially our youth, into groups whose main
focus is to participate in and perpetuate serious criminal activity is a
goal we all share. In our respectful submission, the Criminal Code, as it
presently stands, not only allows for the prosecution of such recruitment,
and has been used in cases involving recruitment, but it also sets very
clear directives as to what the prosecution and the judiciary need to prove
and consider in order to put into effect our shared desired goal —
protecting our youth and putting an end to criminal organizations.
What do the present existing sections — section 467.11, 467.12 and 467.13
— achieve? Section 467.11 reads as follows:
Every person who, for the purpose of enhancing the ability of a
criminal organization to facilitate or commit an indictable offence
under this or any other Act of Parliament, knowingly, by act or
omission, participates in or contributes to any activity of the criminal
organization is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
Section 467.11 then goes on and addresses what the prosecution need not
prove. The prosecution need not prove that the criminal organization
actually facilitated or committed an indictable offence. The prosecution
need not prove, according to the Criminal Code as it now reads, that the
participation or contribution of the accused actually enhanced the ability
of the criminal organization to facilitate or commit an indictable offence.
The prosecution need not prove that the accused knew the specific nature of
any indictable offence that may have been facilitated or committed by the
criminal organization. The prosecution need not prove, according to the
Criminal Code, that the accused knew the identity of any of the persons who
constitute the criminal organization.
That section then continues and provides the court, our judiciary, with
what it may consider when determining whether the accused participates in or
contributes to any activity of a criminal organization. The court has been
directed by the legislation to consider whether the accused uses a name,
word, symbol or other representation that identifies or is associated with
the criminal organization. The court is to consider whether the accused
frequently associates with any of the persons who constitute the criminal
organization. Finally, the court is to consider whether the accused
repeatedly engages in activities at the instruction of any persons who
constitute the criminal organization.
Both sections 467.12, which makes it an offence to commit an indictable
offence for the benefit of or at the direction of or in association with a
criminal organization, and section 467.13, which makes it an offence for a
member of a criminal organization to instruct, directly or indirectly, any
person to commit an offence for the benefit of that organization, also
contain directions for the prosecution as to what need not be proven in
order to convict an individual of these offences.
I point out these directives in the existing legislation because not only
were they well considered and give clear direction to the prosecution as to
what evidence need not be proven, but I point them out in comparison to the
proposed amendment found in clause 9 of Bill C-394. Those directives to the
Crown and to the judiciary are absent in clause 9. That, in our respectful
submission to you, leaves the door open for a great deal of interpretation.
The proposed amendment reads as follows:
Every person who, for the purpose of enhancing the ability of a
criminal organization to facilitate or commit an indictable offence
under this Act or any other Act of Parliament, recruits, solicits,
encourages, coerces or invites a person to join the criminal
organization, is guilty of an indictable offence . . . .
Does the absence of the directives to the Crown as to what she does not
have to prove mean that she must now prove those facts in order to secure a
conviction under the proposed amended section? It is unclear.
Does the Crown have to prove that the role the individual is being
invited to take by the recruiter will actually enhance the ability of the
criminal organization to commit an indictable offence? The section is
Will the Crown have to prove that the recruitment itself, adding a number
to the mass, will enhance the ability of the criminal organization to
facilitate or commit an indictable offence? We have no directive on this
point in the proposed amendment.
What does "join" mean? Have I joined if I go to one meeting and never
return because I realized it is a criminal organization? How do those facts
play into the culpability of the recruiter with respect to intention and
penalty? We have no directive.
What does "enhance" mean? It is clear in section 467.11, which now
exists, that "enhance" does not mean the criminal organization actually
facilitated or committed the indictable offence, nor does it mean actual
enhancement of the criminal organization's ability to facilitate or commit
the criminal offence. What does it mean in the proposed new section? The
amendment offers law enforcement and the Crown no assistance in that regard.
One of the issues raised from one of our Vancouver representatives
pointed out that we have cases in which members of the same organization
were found to be members of a criminal organization in one province while
not in another. Will such findings create disparity in relation to the new
offence when a criminal organization may be defined differently from
province to province? The answers to these questions are unclear and
therefore, in our respectful submission, the bill lacks clarity.
The history of the existing legislation found in sections 467.11, 467.12
and 467.13 of the Criminal Code was discussed at various stages in these
proceedings. It has been pointed out that when the provisions were
originally introduced, former Justice Minister Anne McLellan clearly stated
the intention behind the sections. "We know that successful recruitment
enhances the threat posed to society by criminal organizations. It allows
them to grow and more effectively achieve their harmful criminal objectives.
Those who act as recruiters for criminal organizations contribute to these
ends, both when they recruit for specific crimes and when they recruit
simply to expand the organization's human capital."
Section 467.11 makes it an offence to enhance the ability of a criminal
organization to facilitate or commit an indictable offence knowingly by an
act — and I would read in there "recruitment" — participate in or contribute
to any activity of the criminal organization — and again you can read in the
word "recruitment." The offender would be guilty of an indictable offence.
What you have in the existing provisions is clarity as to what need not
be proven and what factors the court may take into consideration to
determine participation and/or contribution in the act of recruitment.
Having two sections under which the same offence may be charged will
also, in our opinion, lead to disparity. An officer in Saskatchewan may
choose to charge a recruiter under section 467.11, as she finds the
directives as to what evidence is needed helpful. She loses the mandatory
minimum but has clear directives as to what evidence is required. As she
knows from the cases that have come before the courts, recruitment charges
are often one factor in a group of charges, normally trafficking charges,
and sentences for conduct tend to be far greater than the six months in the
mandatory minimum proposed.
However, an officer in Montreal may charge under the new section being
proposed, section 467.111. While he has the mandatory minimum benefit, the
legislation does not help the prosecution or the court in relation to what
evidence need not be proven and what factors to consider in determining
guilt. While the mandatory minimum may be attractive as a deterrent, not
being able to convict because of lack of directives makes penalty a moot
With respect to the application of the amendment to section 196.1, we've
heard some comments earlier, and I will actually shorten my comments in my
presentation. For the purposes of continuity, section 196.1 should be
amended to fit with its sister clause at 196, which already exists in the
The concern, obviously, is for consistency. When the Criminal Code is
changed, and we say we'll come back to a point later on, the concern is
someone may take a look at section 196.1 and say, "Well, it's not in here."
All the other sections are here but it doesn't apply to this.
The Chair: I'm going to ask you to wrap up, please. We have other
witnesses and we are going to want to ask you questions.
Ms. Liva: Thank you.
Bernard Lerhe, President, Fraternité des policiers et policières de la
Ville de Québec: I am a police officer with the City of Quebec and
President of the Fraternité des policiers de la Ville de Québec. For 12
years now, I have dealt mainly with crimes committed by gangs, including the
Hell's Angels and Rock Machine. I am here today with my colleague, who is
captain of criminal intelligence with the Quebec City police and who was
also recently responsible for a combined regional squad of RCMP and Sûreté
du Québec officers that also handled crimes committed by gangs across
We were very satisfied when we read your bill because it contains several
amendments to the Criminal Code to prevent our youth from being encouraged
to engage in drug trafficking and juvenile prostitution. This bill would
also reduce the burden of proof that police officers must meet when they
present evidence in court. A study conducted by the University of the Fraser
Valley shows that the burden of proof that police officers must discharge in
court to substantiate charges against the accused has considerably increased
in the past 30 years. For drug trafficking, for example, they concluded that
the amount of time police officers must spend in order to charge someone in
court with drug trafficking has risen by 722 per cent. Consequently, your
bill helps us lighten their load and also helps police officers be part of
the action rather than do paperwork.
Our youth are often recruited by criminal organizations to commit crimes,
obviously because they receive much shorter sentences since they are minors.
Consequently, adult gang members try to recruit young people, who will not
be given long sentences. That is their aim, and that is why they try to
This bill would also allow police officers more time before being
required to disclose to a person that he or she has been under electronic
surveillance. That time is now 90 days. This is a benefit for us because now
when we inform someone that he has been under electronic surveillance, even
if we could obtain new evidence from that person, he will obviously go as
quiet as a grave. He will stop talking. Giving us additional time before we
inform him that he is under electronic surveillance will help us in our work
and in charging these individuals.
The fact that the bill facilitates our electronic surveillance work is
also an advantage for minors who are forced to engage in juvenile
prostitution, for example, because they obviously do not keep an agenda when
they do so. And when they subsequently testify in court, they are often
cross-examined by defence counsel on exact dates, and, since they have no
agenda, they have no exact dates. Electronic surveillance lets us help them
find a specific reference to a date or time when incriminating conversations
In addition, the fact that criminals will serve consecutive sentences
when convicted for recruiting minors and that inmates cannot be paroled
before serving half their sentence is also a plus for us. It is an
indication of the seriousness of the act and of the crime. It is a clear
message from society to these criminals.
The clause concerning witness protection, which is designed to make it
easier for us to protect witnesses, is also important for police officers
because, if we have no witnesses, in many instances we have no case. Witness
protection is important, and this bill makes it easier for us to do it.
There is also DNA sampling. They say that criminals must supply their DNA
unless they can convince the court that sampling will have a clearly
disproportionate impact on their privacy and personal safety. You have to be
aware that criminals try by every possible means to escape DNA sampling. My
colleague, Capt. Collin, can give you the specific example of the court
testimony of one criminal who wanted to avoid providing a DNA sample, which
was not mandatory in his case.
François Collin, Captain, Service de police de la Ville de Québec:
That DNA case involved an individual whom we investigated in the Quebec City
area and who agreed to a sentence of 12 years for trafficking in 90
kilograms of cocaine. He had no problems when it came to setting conditions,
including the firearms prohibition, but a crisis erupted in court when he
was told that DNA sampling was required for that crime. He did not want to
supply his DNA, and the reason he gave was that you can change your name and
facial features, but DNA follows you around the world. DNA is extremely
important for us in our investigations. It can help us with cold cases and
all kinds of crimes. Most importantly, it leaves a trace, and that has an
extremely significant deterrent effect in preventing other crimes.
That is why we support the bill and why this clause is extremely
important for us.
You have to think that the basic motivation for the recruitment clause is
to protect young people. In our region, we see a lot of recruitment by
street gangs. Street gangs are finding it hard to establish themselves in
However, they come in cycles from other regions of Quebec and Canada.
They come to our neighbourhoods looking for girls, often pretty and perhaps
more disadvantaged young girls, or even others from good families. They
attract them, recruit them, leave the region with them, go to other regions
of Quebec and then we lose control.
This clause of the bill could help us prevent these young people from
being transported from one region to another and from suffering very serious
injury. We want to act upstream, before anything happens, and this would
give us an extremely effective way of doing it. Electronic surveillance is
important for one very simple reason: there is often no substantive evidence
of drugs or anything else in recruitment cases; there is just language. So
how can we secure admissions? Electronic surveillance would help us get
admissions, and that would help us because victims often do not want to
cooperate with us for safety reasons or because they are afraid of the
system. It is extremely important for us to have this power.
At the Service de police de Québec, both in the Fraternité des policiers
et policières de la Ville de Québec and in management, we are generally very
much in favour of a bill such as this one, which would help us every day in
doing our jobs and fighting to save our young people, who are the future of
Senator Baker: Thank you to the witnesses. I think Mr. Collin and
Mr. Lerhe gave excellent presentations from the point of view of the police
investigating crimes and what you need in order to investigate and carry
through with charges.
It appears that you are happy with these provisions because you think
that they will allow you more latitude and greater ability to investigate
through this section that deals with wiretaps, of not having to inform
objects of wiretaps that they were actually tapped, making it easier to
investigate and charge.
I'm interested, Ms. Liva, in your interpretation of this. The police are
saying that it seems this is going to make it easier because they won't have
to jump through so many hoops if they are going to charge under section
467.11, 467.12 or 467.13.
Section 467.11 is "to participate in," and the legislation says
"knowingly." Section 467.12 is the actual commission of an offence, which
would carry the normal mens rea if you were proving it. Section
467.13 also says "knowingly." That's "instructs." This section we're dealing
with here, clause 9, leaves out the word "knowingly." When you looked at the
bill, did you notice that this was rather unusual? You noticed that it
didn't carry the other elements that are involved in the other offences and
what you have to prove and what you don't have to prove, but did you also
notice the missing word "knowingly" and whether or not, given all of that,
there would be a constitutional challenge to the legislation?
Ms. Liva: I did notice that the word "knowingly" is missing in
that as well. One may try to assume that when one meets another youth and
tries to recruit them or bring them in, they know what they're doing that
for, but the word is missing and it does take away from what is required to
be proven. It's problematic.
Senator Baker: The problem with not having the "knowingly" there,
as I read it, is that you would have to be recruiting somebody to a criminal
organization knowing that this was a criminal organization, knowing that
they were involved in planning an indictable offence. That's the way the
legislation is written. Without the word "knowingly" there, couldn't
somebody who just doesn't know a young person's gang is involved in any
indictable offences — would somebody be captured who just suggested that
somebody join this organization, without knowing that the organization was
connected with any criminality?
Ms. Liva: One could imagine a situation in which someone had only
recently been recruited and didn't appreciate the extent of the
organization. In that case, that could be a difficulty for that individual
who becomes a recruiter because they're in the same schoolyard as the other
individual. Yes, I can see that scenario.
Senator Baker: Everyone's telephone is tapped. Their parents'
telephone is tapped, their grandparents' telephone is tapped, and everyone
else tracking it down, and without the person being an element of the
offence, the person who recruited you "knowingly" knew this was an
organization carrying on indictable offences.
Ms. Liva: That's why, when we look at the directives found in the
existing provisions, it's very clear as to what has to be proven. There is
such an absence of that under the proposed section. It leaves it open, and I
think it does open it up to Charter challenges.
Senator Baker: So the police are right and you're right. Thank
Senator Plett: Charter challenges: We hear a lot of that here, if
something isn't constitutional. Yet somehow — and I don't know how in the
world we ever get any laws passed, because every law we try to pass is
unconstitutional and challengeable.
I would assume, Ms. Liva, that defence lawyers should be happy that we
have legislation here that is so open for interpretation that you have your
cases already made. It should be the prosecutors who should be unhappy with
this legislation, not the defence attorneys, and yet here we have the
defence attorneys again. I have said this before. It seems that almost every
piece of legislation we're dealing with here in regard to the Criminal Code
is that we have law enforcement on one side and defence attorneys on the
I'm not a lawyer. I find this quite clear, actually, when it says:
Every person who, for the purpose of enhancing the ability of a
criminal organization to facilitate or commit an indictable offence
under this Act or any other Act of Parliament, recruits, solicits,
encourages, coerces or invites a person to join a criminal organization,
is guilty of an indictable offence and liable . . . .
In your comments, you talked about what "join" means. It doesn't say that
the person has to join. It says they have to be invited to join. So I think
if I invite you to join a gang and you say, "Well, I am going to come and
check this out," you haven't joined, but I've invited. You haven't broken
the law; I have.
So that is who we're targeting. We're not targeting the people who are
joining the gangs; we're targeting the people who are recruiting to join the
My question is this: You're talking about the redundancy of the bill, and
it would mean that the individual would not have to accept the recruitment
for it to be an offence. I'm assuming that is correct. Where do you find
this language not to be clear, when it says "invites"? "I invite you to join
a gang"? I'm not concerned about section 196.
I will ask you a second question. When you talk about section 196, as
Senator Joyal has already talked about, and I'm sure he will again today and
tomorrow, I would like a very simple — and I know that's difficult for any
politician and any lawyer to give a simple, direct answer, so I will put
myself into that category as well. But I would like a simple answer. If we
passed this legislation the way it is, in your opinion, can we next year
amend it to have the wording that Senator Joyal wants and that you want? Is
it possible for us to amend it after, or is this gone and we can never amend
this if we pass it this way?
Ms. Liva: I'm a mere criminal lawyer; I'm not a politician. So how
you do things around here I'll leave in your hands. However, I will say
this: As a lawyer who has worked as a Crown attorney and a defence lawyer,
this Criminal Code that I walk around with is the rules of my game. So if,
for the next year, the rules of my game are unclear to me, if I, as a Crown
attorney, look at the Criminal Code and see two sections under which I can
draft an information, one which allows me and gives me very clear
information as to what I need to prove or not prove under section 467.11 and
another section that doesn't make it clear, as a Crown attorney, I'm going
to go with what's certain. I'm going to go with what's clear.
In my respectful submission to you, the proposed legislation doesn't give
me, as the Crown attorney, or the officers, quite clearly, something that is
clear that I know sets out the evidence and sets out what the court will
consider. The wording in the proposed amendment is quite broad, in my
respectful submission. So what I'm actually trying to do — and it might be
counterintuitive as a defence lawyer — is to make sure that this tool that I
use is clear to me as defence counsel, is clear to the Crown attorney and is
clear to the judiciary.
Senator Plett: Can it be changed in the next year?
Ms. Liva: You're going to have a year period where I, as the
defence lawyer, am going to play around with your legislation.
Senator Plett: Can it be changed next month? Can it be changed,
yes or no?
Ms. Liva: I don't know. You're the politician.
Senator Plett: But you're the lawyer. You're telling us what's
wrong with it. Can it be corrected? If we pass it, can we put in another law
that changes it?
Ms. Liva: If that law is passed, I gather that you could.
Senator Plett: Thank you.
Ms. Liva: In a year's time, after I played around with your
legislation for a bit.
Senator Plett: Or in a month's time or two months' time.
Ms. Liva: Could be.
Senator Joyal: In relation to the presentation that you made, Ms.
Liva, in terms of your past experience, would it be easier for a Crown
attorney to prove a crime of recruitment of youth under section 467.11 or
467.12 or under the new 467.111?
Ms. Liva: In my opinion, the existing legislation actually makes
it easier for me. It actually says what I don't have to prove. As you go
through subsection (2) of 467.11, it's very clear that I, the prosecutor,
don't even have to show that the criminal organization was actually
facilitated by the recruitment by the accused, nor do I, as the prosecutor,
have to show that the participation of the recruiter actually enhanced the
ability of the criminal organization to facilitate or commit an indictable
offence. So from the prosecutorial point of view, the legislation that now
exists is actually quite helpful, and there are cases where recruitment has
fallen under the sections of the Criminal Code. People have been prosecuted
for recruiting using the legislation that we now have.
Senator Joyal: We were told by some of the proponents of the bill
that the Criminal Code, as it stands now, at section 467.11, 467.12 and
467.13, is not clear enough or focusing enough on the recruitment of youth
to be effective, in other words, to allow the police forces and the Crown
attorney to really go after those who recruit youth for the criminal
organization. I have some reservations about accepting that comment, but it
seems to me that, the way that the bill is drafted, it won't change a lot
the capacity of the police forces. I say the capacity because there is also
a political will behind the police forces. They decide which crimes they
will go after.
Your capacity is also limited, and you decide where you will focus your
efforts. What is the best approach to adopt if we really want to help combat
the recruitment of young people? Is it really to add this provision, which
in fact may confuse the police or Crown attorneys in deciding which chapter
they will use to prosecute with some chance of success?
When I read 467.111, I'm not convinced that it would be more effective
than 476.11. To me, sections 467.11 and 467.12 are much broader, while this
one is much more targeted. By trying to focus on the youth, we have reduced
the capacity of the Crown attorney to make the proof in front of the court.
That's the way I read the new section in comparison with the first one. I
don't doubt the objective pursued by the promoter of the bill and those who
supported it. I agree with the general objective. I am just trying to see if
we are using the best tool to achieve what we want to achieve. That's my
preoccupation in relation to this bill and the section as it is drafted.
Ms. Liva: In Ontario, for example, the officers are the ones that
draft the informations, and they choose what charges will be laid. In B.C.,
I think that the Crown attorneys have some pre-charge screening, and they
get to work into the wording.
If I, the recruiter, know that I need a 12 year-old or an 11 year-old to
come in and traffic drugs in the school yard because they fit into the group
and are not going to look different, then I am knowingly recruiting, under
section 467.11, a young person to commit an indictable offence. I, the
recruiter, fall under section 467.11. Both as a prosecutor and a police
officer, I have a section already in existence, in my opinion. That's where
I would start.
I'm confirming your concerns in that it's here and we've seen it used. I
understand the desire to create a piece of legislation that solely focuses
on our youth, but the words "knowingly, by act or omission, participates in
or contributes" you have there. What it comes down to, in my respectful
submission, is the use the police wish to make of the section. You want to
go after the people who are going after 11 and 12 year-olds? Then, that
becomes your focus. Use the section more often that way. When there's
trafficking going on and children are being used, use the section. Work the
word "recruitment" because it's open. It is broad enough to bring that
Senator Boisvenu: Thanks to our guests, Ms. Liva, Mr. Lerhe and
Mr. Collin, and welcome to the committee. We very much appreciate your
testimony, particularly since it sheds light on this matter and because it
is our concern to ensure that the bills we pass will give you good tools to
do your job.
I have worked in victim services for the past 10 years, and I believe not
a month goes by when I do not get calls from mothers wondering where their
daughters are. They often deal with the police, and the police departments
often lament the lack of tools and the lack of rigour in our Criminal Code.
The mothers are left completely to their own devices in looking for their
I would like to go back to Operation Scorpion in Quebec City, which I
followed closely at the time. Unfortunately, when the men left prison, they
wound up in Sherbrooke, and police officers had to start the investigation
over from scratch. Then I believe they left and returned to Quebec City. In
the space of eight years, those people went to prison three times and
changed cities three times. That proves that the Criminal Code favours this
type of crime and that our police officers, when they intervene, find it
discouraging to see that these people move from city to city and serve a few
months in prison but nevertheless leave hundreds of victims behind. One need
only think of Longueuil, where 200 girls 12 to 14 years of age are
prostituting themselves in street gangs — 200 young girls.
Compared to what you were doing in Operation Scorpion 10 years ago, how
will this bill provide better protection for our girls — because they are
mainly young girls? How will it equip you better? I would like you to start
with the example of Operation Scorpion and tell me how this will make your
Mr. Lerhe: At the time, 15 customers were arrested, 17 procurers
were charged, and some 20 young girls were removed. We used electronic
surveillance and tracking in that investigation. This bill helps us by
facilitating electronic surveillance applications in cases such as that. As
I explained earlier, you have to understand that, according to the study, 30
years later, it now takes a police officer 722 per cent more time to
complete his report for the court and for the accused. The same is true of
electronic surveillance. Thirty years ago, to apply for electronic
surveillance, we completed a few pages and were granted a judge's
authorization. Now we need to provide thick notebooks.
Your bill will help us do our jobs and ensure that less time is spent on
office work, which will let us take action more promptly.
Senator Boisvenu: People who believe that young criminals use a
fixed telephone line do not know how electronically advanced they are. Youth
now use cell phones and change numbers every three months to ensure that
electronic surveillance is as difficult as possible. You will be able to
monitor these youth more easily by having the ability to conduct electronic
Mr. Lerhe: It is even less than that. Captain Collin, who sees
this every day, can tell you it is more frequent than that.
Mr. Collin: In addition to handling intelligence, I am in charge
of electronic surveillance. I can tell you about it specifically. We now
have smart phones, the Internet and an increasing range of technological
resources. Facilitating our access to those technologies, so that they are
not our last investigative option, will definitely speed up our
investigations without undermining their quality. This is true because,
every time we file an application for authorization, since a judge's
authorization has to be obtained, we will be able to move more quickly to
the next step in frustrating technology-based methods.
That is difficult if we do not have those tools. This is very important
when dealing with human trafficking and young victims. We have no
substantive evidence; there are no drugs, only comments and threats. How can
we gather evidence if we cannot acquire these tools within a reasonable
period of time, apart from resorting to informants? Victims are often
frightened and give biased testimony because they are afraid they will be
mistreated. Often, since they were under the influence of drugs, they find
it hard to remember specific events. When they find themselves at trial,
they are less precise and raise doubts. The value of their testimony then
falls to zero and the accused gets off.
I am thinking more about the means the bill gives me to prevent, say, a
recruiter from entering a schoolyard and doing the rounds until he finds
someone who says yes. I am thinking of the recruiter who stands at the door
of a youth detention centre and waits for the girls when they are released
for the weekend, and we can do nothing. We see them leaving with these
individuals knowing perfectly well that assaults will be committed.
They will be nice to them at first and will treat them well, but they
will have to work at some point. Once they are caught up in the system, they
will simply take control of these girls and will make them victims for life,
which will cost society millions of dollars.
Senator Boisvenu: Thank you very much.
Senator Batters: Thank you very much for coming today.
Ms. Liva, I want to draw to your attention that we've heard compelling
testimony from law enforcement and the Manitoba Minister of Justice, who is
an NDP MLA, telling us that this bill is needed and that the current
provisions are not being used or, if they are being used, it's very rare.
Just today, right before I started asking this, we heard Mr. Collin say that
We're trying to provide them with some help with this particular bill. I
would submit that, as a defence lawyer, and I'm a lawyer myself, you may
prefer the current legislative wording not because it's clearer but perhaps
because it's not being used on some of your clients. How would you respond
Ms. Liva: Well, that's not why I prefer it.
Senator Batters: Have your clients been charged with the current
Ms. Liva: No, I don't do gang work and haven't in a while. To take
some of the examples that one of the officers just gave in regard to a
recruiter standing outside of a girls or boys club and waiting for young
girls to come out so that they can then be sexually assaulted, we have
somebody who is knowingly waiting out for the purposes of recruitment,
intent on committing an indictable offence, sexually assaulting and taking
these girls against their will. Section 467.11 covers that. As a lawyer,
whether a defence lawyer or a Crown, as I read this legislation, it's there
and it's clear, and it's the very scenario. I don't see why it's not being
used. If that's in fact what's happening, perhaps education is required,
that this section does in fact allow for that.
Senator Batters: The reason we've heard is that they don't have
the tools required that are in this new bill.
I want to go on to something that Senator Baker was earlier asking you
about, speaking about using the word "knowingly." They would have to
knowingly know that that is a criminal organization. I was just sitting here
listening and thinking what kind of organization would they think this was,
minutes of beatings like we heard Mr. Gill talk about, drug trafficking,
illegal weapons sales. In Saskatchewan, it's very well known what the Native
Syndicate or the Indian Posse is. Nationwide, we know well what the Hells
Angels is. When you meet with those kinds of people, you know what kind of
organization that is. To me, taking out the word "knowingly" in that
reference is not a meaningful omission.
Ms. Liva: You could knowingly recruit someone for what you think
is going to be a one-day event. That doesn't fall under the criminal
organization section, even though it might be done in a group. It is the
greater thing, and that's why the word "knowingly" is important to
understand what you're doing and who you're bringing in and why you are
bringing it in, and that's why I think it exists in the legislation as it's
Senator Batters: What about what I was just saying about what type
of organization it is and using the word "knowingly"? You thought it was a
meaningful omission, but I would submit it isn't.
Ms. Liva: If I may take a moment to look at the exact wording and
compare it to what exists now. If you are speaking to someone and say, "Just
come with me to this meeting I'm going to," the element of mens rea
is very important to criminal law. Having it clearly stated that one must
knowingly be recruiting as opposed to bringing their brother along, thinking
he won't be brought into the organization, I think that's where the clarity
Senator Batters: I guess it's possible, but we've heard a lot of
testimony about how gangs are using older siblings to bring in their younger
siblings, to recruit them to these gangs at an early age. I think if they
bring somebody by saying "Just come along," they know what they're doing.
Ms. Liva: Are you enhancing an organization by simply increasing
its numbers or not? That's one of the questions that arises out of the
legislation. If the person is recruiting for the purpose of bringing
somebody in to add to the numbers, that's not going as far as what we have
in the legislation now.
Senator Dagenais: Thanks to our witnesses for being here. It is a
pleasure to see work colleagues again.
I remember Operation Scorpion, which caused quite an outcry in Quebec
City when I was a police officer. As I remember it, 89 per cent of the
population wanted the operation to continue. Operation Scorpion is a sign
that the bill we are studying today has its place because that operation
focused on one street gang, the Wolf Pack, that was recruiting very young
girls and sending them to a number of cities across Canada.
I would like you to tell us a little more about it because it relates to
this bill. Bills need to be amended, improved and modernized. So I would
like you to give us an idea of the damage and its extent. I imagine that the
bill will help you in your work and that it relates to the recruitment of
street gangs that is being done today. Let me simplify that: this bill will
I would like us to go back to Operation Scorpion, which will help us
understand the bill.
Mr. Lerhe: The UN published a report in 2012, which stated that
juvenile prostitution was spreading in Quebec. The Conseil du Statut de la
femme also prepared a report indicating that 80 per cent of prostitutes had
started when they were minors, hence the importance of taking specific
measures to address this problem.
Many people wanted Operation Scorpion to continue. At the time, 65,000
people signed a petition that was tabled in Quebec's National Assembly
calling for the operation to continue. Montreal street gangs that had come
to Quebec City to recruit girls were arrested. Following those arrests, a
survey revealed that 76 per cent of citizens wanted another investigation
like Operation Scorpion to continue. As a result of that investigation,
customers and procurers were arrested, and girls were removed from the
That operation was clearly important. Quebec City was marked by it. An
operation rarely results in so many arrests. The people of Quebec City would
like another operation of the same kind to be carried out.
Since 80 per cent of girls are minors when they start working as
prostitutes, we realize how essential it is to attack recruitment.
As Ms. Liva said earlier, knowing that customers go into the youth
centres to recruit girls, we could invoke a clause, but that is not as
simple as you would think. When these customers go into the youth centres,
they have only one thought in mind: to recruit procurers. However, they do
it very gently, one step at a time. They start by seducing the girls. These
are real charmers. Then they gradually push them into prostitution. That is
why this bill is important. This kind of operation cannot be conducted in a
single day. It has to be spread over several months. We need to use
electronic surveillance. We must accumulate evidence in order to lay charges
and invoke additions to the code, such as the length of detention, in order
to remove them from the ring, regardless of where they are. In Operation
Scorpion, many customers were arrested and removed from the ring. It is time
we took specific measures to dismantle prostitution rings.
Mr. Collin: Having taken part in Operation Scorpion, I know that
it is all done with charm, gifts and the virtual world. Then, at one point,
the girls become slaves. They live in terror, knowing they have to earn a
lot of money for each of the procurers. The same scenario is being repeated
now, 10, 12 or 14 years later. We have few tools to prevent them from making
it to the final stage. From the moment we know our targets, our recruiters
and the places where they carry out their schemes, we have gathered enough
evidence to prevent them from committing the act. That is what is important.
Senator McIntyre: One thing is clear. There are currently three
organized crime offences. I am going to name them, and I think that is
important because then I am going to talk about recruitment. They are:
participation in activities of criminal organization, 467.11; commission of
offence for criminal organization, 467.12; and instructing commission of
offence for criminal organization, 467.13.
Bill C-394 adds a fourth offence, which involves a whole series of
clauses, concerning in particular recruitment by a criminal organization,
which is stated in clause 9 of the bill.
Mr. Lerhe, you referred to the burden of proof, electronic surveillance,
witness protection, DNA and so on.
I understand that you support the bill. If I properly understood your
testimony, this enactment will be the essential tool in combating organized
However, when I examined sections 467.11, 467.12 and 467.13, I did not
see the word "recruitment". If I am not mistaken, the real purpose of the
bill is to support the three organized crime offences already set out in the
Criminal Code. That is clear, is it not? Do you agree?
Mr. Collin: Yes.
Mr. Lerhe: This bill sends a clear message to criminal
organizations that wish to recruit minors. We know that minors are detained
for short periods of time. Customers recruit minors and thus avoid being
recognized. We talk a lot about prostitution, but we can also talk about
Mr. Collin: Consider the example of a cannabis trafficker who
recruits young people to monitor his crops. He is simply engaged in
recruitment. He does not touch the drugs; he is just recruiting. I would
find it hard to charge that person under the Criminal Code. In a case in
which a real estate agent recruits young people to manage cannabis
plantations, an amphetamine laboratory or a drug stash, for example, I would
have a fourth amendment with which to arrest him. That person could be
extremely harmful to society. With a fourth amendment, I would be able to
proceed with arrests more quickly.
Senator McIntyre: As we all know, the burden of proof is on the
Crown in a criminal case, and the Crown must prove its case beyond a
reasonable doubt. In an organized crime case, however, other measures must
be taken. As an example, I will cite judicial interim release, which appears
in clause 14, in which the burden of proof is reversed.
It cannot be used in all criminal cases, but I think it is necessary in
organized crime cases. Do you agree?
Mr. Lerhe: Yes. An organized crime member is in the major leagues
of crime. For us, even if it is an additional burden, it is quite simply
right. We get something in return. The accused have to prove that they can
be released. It is good for them to have to explain themselves from time to
time. We know that the accused are not required to speak in court, whereas,
in this case, they will have to explain why they should be released. We
think that is a very good thing.
Senator Frum: I will ask the members of the law enforcement on the
panel today if you agree with Ms. Liva's assertion that the bill lacks
clarity. You're the ones who are going to have to make charges under this
bill. Do you find that there is confusion, a lack of clarity for example, on
the concept of what it means to join a gang?
If I understand your argument, Ms. Liva, you're saying if I invite or
recruit somebody and they end up not being a good recruit, then you find
that there's confusion about the activity of the recruiter, that the
recruiter fails or does a poor job of recruiting. Does that mean that person
Mr. Lerhe and Mr. Collin, do you find there's an absence of clarity in
Mr. Lerhe: Defence lawyers have to find loopholes in the act, of
course, in order to get their clients released. In Quebec, however, Crown
attorneys do the charging, not police officers. As police officers, we
submit a report to the Crown attorney. It is the director of criminal and
penal prosecutions who decides whether a case will be prosecuted.
In our view, the text of the act, as currently drafted, sends a clear
message to street gangs, that society is opposed to the recruitment of
Now will defence lawyers find loopholes? It is possible. That is their
job. Our job is to look at the bill and to do our duty, and we hope that,
with this bill, we will be able to do it properly.
Mr. Collin: This is definitely an additional tool. There are no
perfect laws. I think its focus is quite clear for us: the recruitment of
girls and the recruitment of drug traffickers in school yards. There is
always an investigation to determine how we have come up with evidence of
recruitment. We cannot charge someone solely with engaging in recruitment. I
have to prove it. I will have to establish all modi operandi in my
investigation. I would say to you that the regulations are very clear to me
and that they are easily enforceable. We have no choice but to be as clear
and precise as possible in an investigation.
Senator Rivest: You described the very difficult situation in
Quebec City. You even mentioned that the recruitment of young people into
street gangs was on the rise. You also described all the means police
officers use to address the problems and the new options that you need.
What is the impact of community groups that try to prevent youth from
going down this path? Are they having a significant impact in possibly
slowing down street gangs?
Mr. Collin: The community aspect is more the enforcement aspect.
These are two components that must work together in the new situation. The
purpose is to prevent something from happening, not to criminalize or arrest
But, yes, I would say it is useful. Unfortunately, I have no specific
measures that I can use to tell you what the results are, but I can tell you
that it is good. We constantly work with these organizations that assist
youth, the Direction de la protection de la jeunesse, government agencies
and not-for-profit organizations. They form a whole, but we do not have any
We work in cooperation, and it is possible to save a girl with the help
of these organizations without criminalizing. The goal is to save our youth,
regardless of the way we do it.
Mr. Lerhe: There has been a joint effort among the various
organizations since Operation Scorpion, and the police department is part of
that. Quebec City gave community organizations as much as $100,000 in 2013
to enable them to work toward preventing young people from joining street
The City of Quebec is investing money, and the police department has been
involved even more seriously in those organizations since Operation
Scorpion. Someone from the police department is always working with them to
examine the problems they may be experiencing and to determine whether
anything should be promptly corrected.
For example, an organization called SQUAT Basse-Ville provides short-term
accommodation, for two or three days, to runaway minors. They saw people
coming in and recruiting minors and immediately contacted the police
department so that we could identify the people who were going there. I will
not tell you whether any charges were laid, but at least a message of
prevention is being sent to the organizations, with the aid of the police
department, as a result of the fact that the general public has been made
increasingly aware of the situation since Operation Scorpion.
The Chair: We really don't have time, but I know Senator Baker and
Senator Plett indicated an interest in one quick question with similarly
concise responses, so I'm going to give them that opportunity.
Senator Baker: I have a point of clarification for Mr. Collin, who
is responsible for doing up sworn informations to obtain warrants, as I
understand it. I imagine you've done a lot of sworn informations.
When you say that the legislation will make it easier, do you mean that
you won't have to meet the same requirements as the normal warrant to tap
someone's phone under 186 and that you have to exhaust all other avenues of
investigation, a 487 warrant, a 492 warrant, before you apply for a wiretap
under this legislation? Is that what you meant by making it easier to be
able to tap people's phones?
Mr. Collin: No. What I meant was that we will still use the same
means as we use now. When we prepare an electronic surveillance affidavit,
we follow the same rules and we work with a team of attorneys. We go and
present the evidence. Conventional electronic surveillance is our last means
of investigation. We have to do it right at the end, whereas this bill will
help us act more promptly, although we will have the same obligations. We
will not engage in electronic surveillance without authorization. We will
have the same criteria and the same quality criteria, but instead of being
our last investigative tool, it will be a tool that we use during the
investigation. We will not use it at the start of the investigation, but we
may use it sooner than we do now.
Senator Plett: A few weeks ago we had a witness here, also a
defence attorney, who was opposed to this legislation, saying that criminal
organizations don't read the Criminal Code and don't know the laws.
Therefore, putting this in won't necessarily help because they will still be
out there recruiting these children because they don't know what the
Criminal Code says. Could you tell me whether criminal organizations have a
pretty good idea what the Criminal Code says?
Mr. Collin: I have been working in the fight against organized
crime for 14 years. I would say that many of the accused that I have
arrested in the past 14 years probably knew the Criminal Code better than I
did. Why do we see our case disclosures in search warrants virtually
everywhere when we conduct operations? I took part in Operation Shark in
Quebec. I was one of the instigators on that case, together with my
colleagues from Quebec City and around the province. I can tell you that,
like society in general, our criminals are increasingly aware of the law.
They know their rights. They are very well advised by lawyers, and the
Internet helps a great deal. I would say that, no, they are very well
informed about the law.
The Chair: I want to thank all of our witnesses for assisting us
with our consideration of this legislation.
Tomorrow we'll be dealing with clause-by-clause consideration and a
no-review proposal of the Miscellaneous Statute Law Amendment Act.