50 Elizabeth II, A.D. 2001, Canada

Journals of the Senate

1st Session, 37th Parliament

Issue 76 - Appendix "A"

Tuesday, December 4, 2001
2:00 p.m.

The Honourable Daniel Hays, Speaker

APPENDIX
to the Twelfth Report of the Standing Committee on Legal and Constitutional Affairs

Your Committee appreciates that in this age of globalization and rapid technological change, organized crime has become an extensive and insidious force that is tearing at the social and economic fabric of this country. The violence associated with the drug trade, the warfare among rival criminal organizations, the physical decay of certain areas of our communities and the substantial financial costs generated by organized crime activities are just a few examples of how this phenomenon is detrimentally affecting all Canadians. According to the Minister of Justice, Bill C-24 is an acceptance of, and response to, the need for increased police powers and effective legislation to combat organized crime in this country. While your Committee accepts that this need may be more pressing today than in the past, and we heard much testimony to this effect from representatives of various federal and provincial law enforcement agencies and as well as from individual witnesses, we are uneasy about some elements of Bill C-24. Specifically, we have concerns about proposed sections 25.1 to 25.4 - the law enforcement and criminal liability provisions in clause 2 of the bill.

Members of the Canadian Bar Association and Barreau du Québec, along with representatives of practising defence lawyers, were unanimous in their concern that the exemption from criminal liability provisions in Bill C-24 would fundamentally change our criminal justice system. They argued that proposed section 25.1 of the bill was overly broad in permitting police to engage in a wide range of presently illegal activities, even though the provision is being introduced as part of an organized crime package. Concern was also expressed about insufficient checks and balances in the proposed system and the lack of public accountability for police officers operating under these provisions. There was a consensus among the witnesses that there are significant constitutional problems with these provisions. Indeed, it was suggested that this portion of the bill is completely unnecessary, and that a better use of current police resources under existing provisions of the Criminal Code would be sufficient to beat organized crime.

Your Committee shares many of the concerns expressed by members of the legal profession who appeared before us. There is something paradoxical about breaking the law in order to better enforce it. We are aware of the potential for constitutional challenges to these provisions and the implications for the rule of law in Canada. For instance, proposed section 25.1(2) of the bill is a statement of principle setting out the public interest in recognizing a law enforcement justification. This Committee has in the past carefully reviewed the case law relating to the term ``public interest, `` in particular, decisions of the Supreme Court of Canada in which the Court found the term unconstitutionally vague. As well, your Committee fears that public accountability is watered down in proposed section 25.1(3) of the bill which would permit the designation of a broad group of public officers rather than a single named individual for exemption from criminal liability. Your Committee was also disturbed by the evidence brought before it of instances where this crucial method of police accountability has broken down or is non-existent. Civilian oversight of police powers is difficult at the best of times, and your Committee believes that legislation authorizing the exercise of such extraordinary powers by police should be as circumscribed as possible in this regard right from the start.

Despite our unease with the new law enforcement justification contained in Bill C-24, your Committee was impressed by the thorough examination of this issue by Professor Louise Viau. Professor Viau, in her presentation to this Committee, extensively canvassed the legal parameters of this justification and found them to be sound, including the expression ``without lawful authority'' used in paragraph 423.1(1) of the Bill. She felt that the proposed legislation contains sufficient internal checks and balances as well as civilian oversight. Every police officer will not automatically be entitled to rely on the new justification, and those who are, will be limited in their actions. Moreover, in addition to the reporting requirements contained in the bill, Professor Viau noted the availability of police civilian oversight bodies, civil lawsuits for police misconduct and criminal trial review processes as public accountability mechanisms. Professor Viau believed that Bill C-24 had achieved the appropriate balance between the need to fight organized crime, the paramountcy of the rule of law, and civil society's control over its police forces.

In conclusion, your Committee is clearly aware of the broader context within which Bill C-24 exists. The Committee recognizes that we are rapidly entering uncharted waters in the evolution of our criminal law. Bill C-24 is not the only bill before the Senate that proposes new law enforcement justification provisions. In fact, the Minister of Justice has introduced a number of very complex criminal law bills over a very short period of time. Your Committee is concerned that in our rush to protect public safety, we may be losing sight of the bigger picture and eroding critical safeguards that have evolved and been carefully built into the criminal justice system over time. Even in times of crisis, we must be cautious in implementing any legislation that limits the rights and freedoms that are constitutionally guaranteed for all Canadians.

Your Committee therefore recommends that the Senate take the necessary steps to ensure that it fulfills its review obligation under section 46.1 of Bill C-24. It is our hope that the areas of concern outlined in these observations will be thoroughly canvassed during the review of the operation of sections 25.1-25.4, at both the federal and provincial levels, within the next three years. As well, we would expect that the Minister of Justice and the Solicitor General of Canada will monitor these issues, and collect, on an on-going basis, compliance data to ensure that an effective study of this area of the bill may be carried out by both houses of Parliament.