Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-24, to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other acts, met this day at 3:40 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: With us today are the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada, and the Honourable Lawrence MacAulay, Solicitor General of Canada. They are accompanied by Mr. Richard Mosley and Mr. Paul Kennedy, respectively.
Later today we will hear from two investigative journalists and authors, Messrs. Nicaso and Auger, and a panel of witnesses on law enforcement.
Please proceed.
[Translation]
The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada: Madam Chair, on behalf of my colleague, the Solicitor General, thank you for your invitation to appear today on the matter of Bill C-24, an Act to amend the Criminal Code and other statutes in relation to organized crime and law enforcement.
While the Government of Canada continues to work to combat terrorism, we must remember that organized crime remains a major problem in Canada and that our fight against organized crime is in many ways similar to our fight against terrorism.
[English]
We know that both terrorism and organized crime have existed for a long time. They have both taken on new guises because of globalization and technology, and the ability to move billions of dollars around the world quickly and easily. They have existed for a long time and they will both continue to exist.
Both terrorism and organized crime are insidious. They prey on the innocent, inflict fear and attack basic institutions of democracy. While I could spend some time speaking to you about the many similarities between organized crime and terrorism, I should like to highlight one very important similarity. Both organized crime and terrorism require police, prosecutors, legislators, governments and the courts to work together to ensure that our legislation goes hand in hand with effective enforcement tools in order for our efforts to be successful.
This does not mean that they require the same tools. Rather, they require the recognition that in order to be serious about combating terrorism and organized crime we will have to accept and respond to the need for increased police powers and effective legislation where appropriate and where needed.
Bill C-24 was introduced in April of this year for that reason. It responds to the need to provide police and prosecutors with better tools to deal with organized criminals. This need is more pressing today than it has been in the past.
We know that the actions of organized criminals are felt across this country, in communities of all sizes and kinds. This is not simply a big city problem. Organized criminals are at the heart of serious social problems, including illegal drug use and organized prostitution. These crimes typically cost victims up to tens of thousands of dollars. Frequently, the victims are those who can least afford it, such as elderly persons on fixed incomes.
Organized crime is also involved in serious property theft, such as automobile theft, to feed illegal markets. We know that criminals are stealing from Canadians through telemarketing, Internet and credit card fraud. It is an understatement that organized crime has negative effects on public safety and security.
In some areas, the open activity of organized criminal groups has led to an atmosphere of lawlessness and fear. There have been murders of gang members by rival gangs. Innocent third parties have also been killed. In addition to these killings, local officials and ordinary citizens have been threatened and intimidated.
When you hear from Mr. Auger later this afternoon, you will have a first-hand account from a courageous individual who was seen the truly horrific and ugly face of organized crime in this country.
Canadians are paying for the kinds of crime I have just outlined. The impacts and costs are not always obvious, but they are real and can be very significant. We pay in terms of the impact of violence and intimidation in our communities. We pay in terms of human suffering, the disruption of families and the diminution of individual lives. We pay in health costs linked to drug abuse and related illnesses like HIV and hepatitis. We pay in insurance rates, interest rates and lost tax revenues.
Organized crime also has serious consequences across our borders. The international smuggling of persons is an activity of organized crime. This smuggling, frequently done under dangerous conditions, can threaten human lives and often lead to slavery-like conditions for the persons paying the criminal gang that transported them. As Senator Pearson knows, all too often this human smuggling involves women and children.
At the last meeting I attended of justice and interior ministers in Milan, there were two items on the agenda. One was organized crime and the other was terrorism. Around that table, ministers of justice and interior ministers from European Union countries and Japan talked at great length and with great eloquence about the growth in human smuggling and the human tragedy attendant upon it. They spoke about the fact that in almost all cases human smuggling is run by elements of organized crime. In the opinion of the G8 justice ministers, this is a growing and particularly distressing phenomenon, especially for women and children.
Organized crime is also involved in the illegal trafficking of firearms, the cross-border smuggling of contraband such as tobacco and alcohol, and even in environmental crimes such as the illegal dumping of toxic wastes.
Clearly, organized crime does not respect borders and so must be met with an international response. As with terrorism, we must be willing to work together with our international partners to deal effectively with organized criminals.
Although Canada works hard to fight organized crime with the United States, throughout the Americas, in the G8, with the European community generally, and with the United Nations, having signed the United Nations Convention Against Transnational Organized Crime, we must and will do more in cooperation with our international partners. Greater investigation, greater information sharing, and a greater understanding of the need to work together to choke off the activities of organized criminals is key to our success.
Domestically, the proposals in Bill C-24 seek to improve our capacity to address the problems created by organized crime. The proposals of the bill fall into four categories. First, the bill provides a new definition of criminal organization and creates key new offences targeting the full range of activities of these organizations.
Second, the bill provides new measures to improve the protection from intimidation of people who play a role in the justice system.
Third, the bill broadens the powers of law enforcement to forfeit the proceeds of crime and, in particular, the profits of criminal organizations, and to seize and forfeit property that was used in the crime.
Fourth, the bill creates an accountable process to protect law enforcement officers from criminal liability for certain otherwise illegal acts committed in the course of investigations.
I will focus my comments on the definition of criminal organization and the problem of intimidation. My colleague, the Solicitor General, will speak more generally to law enforcement powers and accountability.
In 1997, Bill C-95 created the first definition of criminal organization. This bill also created an offence of participating in the activities of a criminal organization, when combined with the commission of a particular crime. Despite some degree of success in prosecuting this offence, we recognize that these provisions should be strengthened and made more effective.
In response to this, the definition of criminal organization has been clarified and extended in scope under Bill C-24. The definition of criminal organization proposed in the bill responds to the concern, a very real concern, that the current definition only captures a limited range of criminal organizations and is excessively complex to establish.
The current definition only captures criminal organizations that include at least five persons, and at least two of which have committed serious offences within the preceding five years. As well, the organizations themselves must be shown to have been committing crimes punishable by a maximum sentence of five years or more imprisonment.
The new definition of criminal organization will target criminal groups of three or more individuals, one of whose main purposes or activities is either committing serious offences or making it easier for others to commit serious offences.
The definition specifies that the serious offences are those that, if committed, would likely result in the direct or indirect receipt of a material benefit to the group or persons who make up the group.
The new definition also clarifies that the definition of "criminal organization" does not apply to a group of persons that forms randomly for the immediate commission of a single offence.
I wish to take this opportunity to clarify the relationship between the anti-organized crime provisions and the anti-terrorist provisions with respect to definition.
Under these new bills, we view criminal organizations and terrorist groups as distinct, legal concepts. This results from key words used in the definition of each. With respect to a criminal organization, the definition includes reference to offences likely resulting in material benefit. The receipt of material benefit is the primary focus of organized crime, but not of terrorism.
With respect to terrorist groups, the definition under Bill C-36, through further reference to the definition of terrorist activity, refers to specific offences under international conventions on terrorism, and more generally to offences intended to intimidate persons through violence or other activities that cause serious harm for political, religious or ideological purposes. This is the essence of terrorism, but not the essence of organized crime.
Conceptually, and this is why I am explaining this in some detail, there could be some overlap between the two definitions in certain cases. This may occur in practice as well. It is possible to imagine a terrorist group that operates locally as a criminal organization to obtain financial gain that can be used to finance terrorism. In some cases, it may be possible to prosecute under one or the other of the provisions applicable to criminal organizations and terrorist groups. Nevertheless, it is important to recognize that we are providing two separate definitions under our laws in Bill C-24 and C-36, and separate offences, although sometimes similar offences, to deal with each.
I observe, however, that some of the other provisions of Bill C-24 that deal more generally with law enforcement, including the new law enforcement justification provisions, will also be helpful in the fight against terrorism.
As I have noted, a criminal organization offence was added to the Criminal Code in 1997. While there have been successful prosecutions under this section, there are real concerns that the section is not sufficient to allow effective prosecution of the full range of criminal organization activity. This is especially true with respect to those who knowingly facilitate the activities of criminal organizations themselves without necessarily being directly part of the organizations.
Under Bill C-24, the existing criminal organization offence will be replaced by three new offences. These offences target participating in or contributing to the activities of a criminal organization for the purpose of enhancing that organization's ability to facilitate or commit indictable offences, involvement in indictable offences committed for the benefit of or at the direction of or in association with a criminal organization, and leadership of a criminal organization.
The maximum penalties for these offences would be five years, 14 years and life in prison, respectively. These penalties would be consecutive, not concurrent, and would be subject to a presumptive parole ineligibility period of one half the sentence.
I believe that together with the new definition of criminal organization, these new offences will significantly enhance our ability to prosecute those involved in organized crime.
In the past, members of criminal organizations have attempted to intimidate informants, witnesses, journalists and prospective jurors, as well as the police, prosecutors, corrections officials and legislators. When we carried out a consultation, some eighteen months or two years ago now, I was surprised at the evidence and the information that we received as to the degree of perceived intimidation by key actors in the justice system by those involved in organized crime.
In Bill C-24, we have recognized a strong need to combat intimidation and make related law reforms. The bill sets out new jury selection procedures in the Criminal Code to provide greater protection of the privacy of jurors by limiting access to names, addresses and occupations of potential jurors. Bill C-24 also clarifies powers of judges to exclude persons from the courtroom and provides new powers to permit testimony outside the courtroom or by other alternative means in the case of trials of criminal organization offences.
A new intimidation offence has also been added to the Criminal Code with a maximum penalty of 14 years. This new offence deals specifically with acts of intimidation that target justice system participants and journalists. The new section makes it an offence to harass, stalk or threaten these people, who are defined in the bill to include, among others, members of the Senate or the House of Commons, of a legislative assembly or of a municipal council, with the intention of provoking a state of fear so as to impede the administration of justice or impede such persons in the performance of their duties.
Other provisions of the Criminal Code are also amended to specify that murder committed while intimidating or attempting to intimidate justice system participants or journalists constitutes first degree murder regardless of whether the murder is planned and deliberate.
Key provisions in the bill are intended to provide a legislative response to the Supreme Court of Canada's decision in the case of Campbell and Shirose. In that case, the Supreme Court of Canada ruled that the police were not immune from criminal liability for activities committed in good faith in the course of a criminal investigation. The Supreme Court of Canada observed that if such immunity is necessary, it is for Parliament to provide it.
The impact of this ruling on law enforcement has been significant. My colleague the Solicitor General will say more about this. You will hear much more about this from witnesses representing the police community and from others later in your deliberations.
Numerous investigations can be carried out only in a restricted manner that greatly lessens their chances of success. Affected investigations include those into crimes such as the smuggling of persons, illegal traffic in firearms, hate crimes, cross-border smuggling of contraband, international counter-terrorism investigations, serious economic crimes such as the use of counterfeit payment cards, and offences related to fisheries and environmental protection.
In response to the Supreme Court's decision, Bill C-24 provides a limited law enforcement justification. It is important, and I emphasize this, as will the Solicitor General, that the legislation does not grant blanket immunity to law enforcement officers. At this point, I would like to say a few words around the issue of accountability as it relates to this limited law enforcement justification regime. The Solicitor General will also address this, but it is important to talk a bit about this because it is an important issue and one that should concern us all. I know it concerns you as members of this committee.
In addition to establishing, as part of our accountability regime, the designation role of responsible ministers, one of whom is the Solicitor General, including a provision allowing responsible ministers to impose conditions on designations, Bill C-24 imposes three reporting requirements. Clause 25.2 provides for a written report by law enforcement officers to the senior officials responsible for law enforcement who have approved acts and omissions requiring special authorization. This report also is required where exigent circumstances required an officer to proceed without authorization. Clause 25.3 provides for a public annual report by the responsible minister. Clause 25.4 provides for written notice to persons whose property is lost or seriously damaged as a result of law enforcement actions under the regime.
In addition, it is vital to observe that a fundamental accountability mechanism is provided by the core requirement of reasonable and proportional conduct. A police officer that falls outside of this requirement loses the justification and risks criminal prosecution. The officer also risks disciplinary proceedings.
Where unlawful conduct has been committed in the course of a criminal investigation that falls outside the scope of the immunity regime, counsel for the accused may seek a stay of proceedings by arguing that, in light of the criminal conduct of the police, the continuing of the prosecution would tend to bring the administration of justice into disrepute.
Further, a provision has been added for a full parliamentary review of the limited justification scheme within three years. This will allow a review of these provisions in their actual application and may be undertaken by any committee of this Senate, the House of Commons, or of both Houses together that is designated or established for that purpose.
It is important to note that all of these control and accountability mechanisms are an enhancement to, not an alternative to, law enforcement accountability that exists already and that would equally apply to acts and omissions subject to this legislative proposal.
We have some information for the committee in this regard, and we will provide that when officials appear to give you a good sense of the accountability mechanisms that already exist across the country that are at the federal, provincial and territorial levels.
The Chairman: Madam minister, it would be helpful if we could receive it before the officials appear. They will appear later in our proceedings on this bill.
Ms McLellan: Yes. We will do that as soon as possible for you. We will provide you with an overview of existing accountability mechanisms.
Under current law, oversight bodies exist to ensure that the police conduct themselves according to the standards set out in law. That is all I will say about the accountability mechanisms in Bill C-24 as related to the limited justification regime. I know that senators will have questions, and my colleague will have more to say.
We have crafted a necessary, effective and balanced response to organized crime in Canada and have provided a number of key law enforcement tools. I am hopeful that, in our discussions, we can explore some of these issues further and have the opportunity to share with you the nature of the real challenges that face us all as a society and as those involved in the justice system as it relates to the modern face of organized crime.
The Chairman: We will hear from Minister MacAulay before we go to questions. Mr. MacAulay, please proceed.
Hon. Lawrence MacAulay, Solicitor General of Canada: The introduction of Bill C-24 on April 5 reaffirmed that the fight against organized crime is a top law enforcement priority for this government. The bill shows that we have listened to concerns of the police, the provinces and the communities across Canada.
Just over five months later, on September 11, our lives changed. On that day, we began a new kind of long-term struggle against a new kind of enemy. Protecting our citizens against terrorism was a priority for all civilized nations well before the attacks of September 11; however, in the days since it has become clear that the scope of the threat that terror poses on our way of life has no equal. Canadians expect us to do more than just retaliate against acts of terrorism. They expect us to help prevent them from being carried out in the first place. That is why now it is more important than ever that this bill move forward.
The strong measures to fight organized crime contained in this bill are just as relevant to and reinforcing of our ongoing effort to combat terrorism. Bill C-24 gives police and prosecutors the important tools they need to fight organized crime on our streets and in our courtrooms. Combatting organized crime is as much a priority as fighting terrorism on Canada's public safety agenda.
My colleague, the Minister of Justice, highlighted the proposals in the bill that focus on the new definition of criminal organizations and the parole provisions with respect to criminal organizations offences. She also spoke to the issue of intimidation. I fully support these proposals. They are essential tools if we are to effectively deal with organized crime now and in the future.
I would like to focus specifically on how Bill C-24 will make it easier to take the profit out of crime. This is crucial because organized crime is a business. When we take away the profits, illegal business cannot operate.
The bill would expand our ability to seize and forfeit the proceeds of crime. As it stands, the court can take away the proceeds of crime by drug traffic, murder and fraud. Bill C-24 will expand on that list, so we will be able to take away the proceeds of almost all indictable offences. These changes will make the 13 Proceeds of Crime Units we have established across the country even more effective. These units, combining the resources of the RCMP and those of other police and government agencies, were created to target organized crime groups and seize their criminal proceeds. To date, assets valued at well over $200 million have been seized, and over $130 million in fines and forfeiture have been realized. That is significant progress, and the measures in Bill C-24 will build on that success.
In the aftermath of September 11, the bill will allow for, among other things, the enforcement of foreign seizure and forfeitures. This will serve as an effective tool in removing profit generated by criminal organizations outside of Canada. I know many countries have been waiting eagerly for us to introduce this change.
These proposals will allow designated officers, under strict limitations, to perform acts and omissions that would otherwise be offensive, so they can carry out their investigation and even infiltrate criminal gangs. The Supreme Court of Canada recognized that officers operating in good faith might need to have such powers. It also recognized that it is up to Parliament to provide them. That is what we are doing in Bill C-24.
We know about and share the concerns that some have raised that we must ensure that such provisions are governed by strict guidelines and controls. I can tell you that Bill C-24 was drafted with that specific goal in mind. There are many safeguards in this bill. First is the role of the minister's responsibility for policing who will designate the officers eligible for the law enforcement justifications. Only those officers designated will have the protection of these provisions.
As Solicitor General, I will be responsible for designating members of the RCMP. This designation provides both control and accountability. The designations may also be subject to specific conditions to further restrict the application of the justification. If they are misused, they will be taken away.
It is important to note that the methods in this justification are ones that Canadian enforcement officers have been using for many years. Putting exemptions in the Criminal Code allows us to set up specific legislative boundaries for those activities, while providing for clear and effective accountability.
Another safeguard is the exclusion of certain types of conduct, such as causing bodily harm, sexual offences and the obstruction of justice. Any other conduct must be reasonable and proportional under the circumstances and must be for the purposes of the investigation only.
The considerations in making these designations can include that it is necessary, given the nature of the officer's duty; that it is appropriate, given the officer's level of training; and that sufficient supervision is in place. Designations are not provided for individual investigations, they are granted because, generally, they are the duty of a law enforcement officer. This is in recognition that we must maintain a balance between the government's accountability for the actions of its officers and the need to ensure police independence.
Under the bill, a senior officer must authorize any action that may result in the loss or serious damage to property. In addition, enforcement officers must report internally on all conduct requiring authorization. If officers step outside the conditions of the provisions, they will be subject to criminal liability in the courts. Officers will also remain subject to internal discipline for unprofessional behaviour or other misconduct. Bill C-24 also provides for a public annual report by myself and every other competent authority.
On the issue of accountability, I wish to point out that almost all police services in Canada have independent oversight bodies, such as the Commission for Public Complaints in the RCMP. These bodies have an important role holding police forces accountable to the public they serve. These public complaint mechanisms will continue to apply.
New provisions added at the committee stage in the other chamber include specific examples of the conditions that could be applied to designations, clarification of the requirement of police agents and a requirement for a parliamentary review of these provisions after three years. The government supports these changes.
Let me emphasize that Bill C-24 is not a blank cheque for law enforcement officers. It is a balanced plan with strict limitations, conditions and safeguards, and it responds to the needs of the police.
There is $200 million in new funding over five years was allocated to the RCMP, Department of Justice, Correctional Service Canada, CCRA and the Department of the Solicitor General. We will enhance our national coordinated policy and operational response to organized crime and smuggling.
The new funds for the RCMP will build on the $584 million that the force received in the 2000 budget for organized crime enforcement, improve national police services and new communications systems. They will be investing in several core areas. The RCMP intelligence gathering capacity will be increased in Canada and abroad, so key criminal groups operating in Canada can be better targeted.
Major multi-agency enforcement efforts like the regional anti-bike squads in Quebec will be enhanced. There will be an investment to deal with crime at the Canada-U.S. border, building on the two existing binational integrated border enforcement teams, or IBETs, in British Columbia and New Brunswick. Investments will be made in new technology to support complex investigations.
The new federal prosecution strategy will be important for the police. The idea has worked well in other areas, such as the units I mentioned earlier.
Correctional Service Canada will use funds to improve its intelligence capacity and focus on the management of gang members in prison and on condition of release.
My department and the Department of Justice are working closely with the provinces and will make investments in research and policy development.
In conclusion, the war against organized crime, like the war against terrorism, is not a battle we will win overnight, but this bill and the new funding it will invest will help the Government of Canada continue to lead all governments in a coordinated approach. It will support our international efforts, starting with our neighbours to the south. Bill C-24 will help us make important advances in our ongoing fight against organized crime. In the days since September 11, this fight is more important than ever.
A great deal of work has already been done to deal with organized crime and public safety has been the number one shared priority directing the strong partnership effort to this end. We have committed to fighting this problem in the national agenda and our provincial and territorial partners are expecting results, especially on the legislative front.
Bill C-24 is a major step forward on the public safety front, and by giving our law enforcement officers the tools they need to protect Canada, its communities and its people, this bill makes our national effort even more effective.
Senator Fraser: My question is for the Minister of Justice. I am concerned about the law of unintended consequences. In clause 11 journalists are included, along with justice system participants as a class of protected persons. We all understand why that was done. The motivation was noble. Nonetheless, as a non-lawyer, it is my understanding that any word that is included in a statute will have a specific meaning. It will have a definition. If the definition is not in this bill, then it will be provided in some other way, perhaps if it comes to that, by the courts.
There have been several centuries of struggle around the world to avoid having the state decide who is a journalist. Once you decide who is a journalist, you decide who is not a journalist, and there lies terrible potential abuses regarding who is entitled to communicate with the public and under what conditions. Obviously, no one is intending to do that with this bill.
Ms McLellan: No.
Senator Fraser: Nonetheless, my antennae went up when I saw this. What light can you shed on this legislation? Are there any precedents or any other statutes that have brushed up against this particular difficulty in Canada, and what has the outcome been? What is the state of the law of which I am ignorant?
Ms McLellan: Mr. Mosley will shed whatever light he can on this subject.
Senator Fraser, you know better than almost anyone in this room that the journalists, the press and the media, especially in today's world, make up a fundamental component of our democracy. One of the ways that organized crime is able to carry out its insidious acts is to intimidate and try to prevent those who would reveal for the public the extent and horror of their ill deeds, and also reveal to the public the extent of their global networks in some cases.
Organized crime might wish to silence legislators who will pass laws that limit their ability to do what they do domestically and globally. There is nothing organized crime would like to do more than silence journalists who make it their life's work to share with the public, here and around the world, the exact nature and extent of the threat of organized crime to our civil society.
That is by way of preface to tell you that there is nothing organized crime would like more than for journalists like Michel Auger to stop writing what he writes, or to intimidate him in order that he will go away and do something else, which would be a terrible thing for democracy. I have never met Mr. Auger, but he will be here later today.
It is incumbent upon us to provide, even in small ways, whatever protection we can to those who have the courage to do the work and write the stories to help us all understand how pervasive and insidious the threat of organized crime is. Organized crime works through intimidation. I take your point that, as a state, we do not want to interfere with journalistic freedom.
Senator Fraser: That is what freedom of the press is all about.
Ms McLellan: That is right. However, I assure you that there are those who want to silence the voices of people like Michel Auger. While we do not pretend that this would necessarily prevent those kinds of actions, it sends a message that we as a society value the role of the press in our democratic system to help us understand the nature of the threat. We want to protect those who help this free and democratic society understand the nature of the threat.
Mr. Richard G. Mosley, Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice: When this amendment was made in committee in the other chamber, we were not entirely sure what the effect would be. The question that you have raised immediately came to mind. In fact, it was raised by, Stephen Bindman, a colleague working in the department who is a well known journalist. His first question was about the effect that this would have.
Inquiries were made of the Canadian Association of Journalists, I believe, although I would have to confirm that, to determine whether there was any concern that having a reference to journalists in the Criminal Code would have any negative effect. The precise question was, "Are you comfortable with having the government incorporate a reference to journalists in the bill?"
Although clause 11 on page 18 of the bill refers to a justice system participant or a journalist, the bill does not attempt to define the term journalist. It does define a justice system participant, as the minister has noted, and that includes a number of persons who have a role to play in the justice system. Any effort by the government to define the term journalist might raise alarm bells within that community.
Freedom of the press, as protected by the Constitution, includes those who work within journalism, so the courts may have occasion to attempt to define whom they may be. That would be in the context of a particular proceeding in which the Charter protection was invoked.
Senator Fraser: The CAJ had no objection; is that correct?
Mr. Mosley: Yes. The reaction was very positive. They were pleased that the House of Commons had taken this step to extend some protection to their community.
[Translation]
Senator Beaudoin: My question deals with clause 11 of Bill C-24. If I understand correctly, Bill C-24 creates an offence for the intimidation of a justice system participant. I would like you to elaborate on clause 423.1 of the bill:
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in:(a) a group of persons or the general public in order to impede the administration of criminal justice;
(b) a justice system participant [...]
(c) a journalist [...]
Am I to interpret paragraph (b) as referring to a lawyer, a politician or a judge, without lawful authority?
[English]
My question is a legal one. What does "sauf autorisation légitime" mean? Who will do it and what is it?
Ms McLellan: You are talking about justice system participants, which is defined on page 2. It is an outline of who those participants are for the purpose of this legislation.
Senator Beaudoin: What exactly is the meaning of the words "sauf autorisation légitime"?
Mr. Mosley: It is a qualification of whether any of the conduct described in subparagraph 2 is authorized in some place. For example, if you look at "besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be," it may be that a warrant is issued for the surveillance of a particular person who would fall within this definition of justice system participant and it would subject that person to, perhaps, electronic surveillance or visual surveillance.
It is not inconceivable that some form of lawful authority could be issued in relation to one or more of these forms of conduct. It is highly unlikely and I cannot think of any that would permit violence against a justice system participant or damage to property or destroying property. However, with regard to "persistently or repeatedly following," if there is an allegation of corruption, for example, involving someone who works in the justice system, they may well be under surveillance and may be persistently followed as the investigation ensues. The only reason those words are in there is to ensure that this offence does not apply to someone who may be properly engaged in the administration of justice.
Senator Beaudoin: To take a clear-cut case, suppose there is an intention to provoke a state of fear for a Crown attorney, a judge or a member of Parliament. In the second paragraph you referred to those acts of violence. It appears to be good. I agree with that. However, is it drafted precisely enough?
In English it reads:
No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear...
Can you give me an example of that? We are living in a state of fear to a certain extent. What does that mean in practice?
Mr. Mosley: This is an offence that is an extension of an existing offence in the Criminal Code that applies to everyone. What was done here was to create a special offence of intimidation. Intimidation, by its very nature, results in the creation of a state of fear in someone. That is what those words refer to.
Ms McLellan: Did you want a specific example of how that might happen?
Senator Beaudoin: Yes.
Ms McLellan: You would like an example of how a justice participant, such as a juror, might be intimidated?
Senator Beaudoin: What worries me is not so much the principle of clause 11. It is the phrase "without lawful authority" or, in French, "sauf autorisation légitime." Who is the judge of that?
Mr. Mosley: Ultimately, it is the court that rules.
Senator Beaudoin: We are in criminal law. We must be precise. We already have that in the Criminal Code. I agree with you.
Mr. Mosley: I can give you an example of a case that occurred in Canada. It was alleged that during the course of a criminal jury trial, members of a particular gang positioned themselves in the courtroom during the trial each day and stared at the jurors. They persistently stared at a particular juror throughout the trial. It was alleged that that was done to intentionally cause a state of fear in the jurors that would intimidate or influence them into doing something with the proceedings.
There have been other examples. We conducted a consultation, as the minister noted, across the country and talked to people who work in the system in various capacities. In the Province of Quebec two prison guards were shot dead for no apparent reason, other than to discourage other prison guards from interfering with the traffic of drugs.
We heard a series of stories across the country. My colleague was responsible for that consultation. We heard of a rising fear about the use of intimidation in the criminal justice system, which is why this section was proposed.
Senator Kelleher: Is the commission of the offences that the police will be given the authority to commit limited to investigations of a criminal organization, or can these powers be used in any and all criminal investigations, including the investigations of terrorist activities?
Mr. MacAulay: The person or individuals that are designated are under supervision of an officer and they can only perform these duties involved in an investigation.
Senator Kelleher: I understand that, but with respect, that is what you always say to a judge even though you do not mean it. Can this include the investigation of "terrorist activity?"
Mr. MacAulay: Yes, indeed.
Ms McLellan: Yes.
Senator Kelleher: Therefore, the police could be involved in committing terrorist acts in the course of their investigations if they were so permitted; is that correct?
Mr. MacAulay: Falling under this legislation, if a terrorist organization is involved, it could also be involved in organized crime, which would tie the two together under this legislation. One could be investigating a terrorist organization for organized crime activity. That could very well take place.
Ms McLellan: Senator, your question is a good one. One might have authorization for law enforcement officials to participate in a money-laundering scheme, the money of which is used to finance terrorist activities.
Senator Kelleher: The question is timely, in light of Bill C-36, to let the people of Canada know that this can also involve terrorist activities.
Ms McLellan: Indeed. Money laundering is probably a good example where we know that terrorist organizations raise money here and around the world, and we might want to authorize our law enforcement authorities to go undercover and participate, for example, in a money-laundering operation, in order to reveal the full extent of the operation, to lay charges and to blow it apart.
Mr. MacAulay: I had the privilege of meeting an undercover officer who was involved in this type of activity and who explained the need for this kind of legislation.
Mr. Paul Kennedy, Senior Assistant Deputy Solicitor General: There are many serious criminal offences that the police are not authorized to do, for example, murder, sexual offences, assault causing bodily harm and obstruction justice. The definition of terrorist activity is at the high end, and includes offences that put lives in jeopardy. The officers are not authorized to do that under this scheme.
As part of the normal investigation done of such organizations, there are support or ancillary activities that they have to be involved in. The Minister of Justice referred to money laundering. Another example is the preparation of false documents. These are all tools that people have to commit terrorist activities. The officers will be working with these people to find out who is doing what and to infiltrate the groups. You can take from there that the officers will be doing things such as bombings. That would defeat the purpose. However, they have to go in at the entry-level and investigate to be able to take action. There are thresholds that are off the table and are not done.
Senator Kelleher: We had a MacDonald Royal Commission on that several years ago.
Mr. Kennedy: Yes, I am aware of that.
[Translation]
Senator Joyal: I would like to go back to one of the concerns raised, the one dealing with the simple phrase: "who police the police".
This phrase is contained in the second volume of the Poitras Commission investigation report.
[English]
You will remember that report of 1988é
[Translation]
On page 1677, this phrase refers to decisions of the Supreme Court of Canada that are very well known.
[English]
You quote the Campbell case. I would like to quote the Mack one of December 1988. I will quote it in French.
[Translation]
There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law.
[English]
Clause 25 is a very important clause. It is exorbitant to our penal law as it now stands, as well as to the way the Supreme Court of Canada has interpreted it in its last judgment in Campbell.
The court has put a constant interpretation on the rule of law as it applies to the police. In other words, the end does not justify the means.
We expect the police to have some tools to achieve the maintenance of law and order and to catch people who commit heinous crimes and who are involved in organized crime; however, they have to maintain the rule of law. This principle is very important. It is linked to information provided to the public, which Senator Fraser mentioned. When the police assume its responsibility it does so under the rule of law, and it has to do it with a view to scrutiny by the public. It is as important to know what the criminal does as it is to know what the police do. The court decided this point on November 15 in the case of R. v. Mentuk. The judgment states, in part:
But there has always been and will continue to be a concern about the limits of acceptable police action. The improper use of bans regarding police conduct, so as to insulate that conduct from public scrutiny, seriously deprives the Cana dian public of its ability to know of and be able to respond to police practices that, left unchecked, could erode the fabric of Canadian society and democracy.That is a fundamental of our criminal justice system. Not only must the police respect the rule of law in every instance, but also the court has said clearly that the ends do not justify the means. In this bill, we create for the first time a pervasive authorization, not only for bikers, but also across the board for the police not to abide by the Criminal Code in certain circumstances.
How can we strike a balance, as you said yourself, with regard to proportionality? How can we maintain the integrity of the law and order system of the police with the need to control the police when they resort to extraordinary and exorbitant powers of doing things that are defended under the Criminal Code or other federal statutes?
In clause 25, I do not see the independent control over decisions by the police, for instance, over wiretapping. When the police want to wiretap my conversations, they would go to a judge and request authorization. If they want to destroy or steal my property, the police authorize themselves to do that. The police answer and respond to themselves. They do not have to go to a third party. They report to you, minister. They have a vested interest to serve you well. No one questions that. In terms of the line of balance and of proportionality, there is a major weakness in this bill.
I agree that judges give authorization. I do not see a judge giving authorization to commit a crime, as such. We have precedents in our federal legislation where bodies that undertake security or intelligence activities are monitored. My colleague Senator Kelleher mentioned the McDonald Commission, and you know of the three books in the Poitras investigation. The police need to be policed when they resort to the extraordinary powers that are being granted in this bill to commit crimes.
I listened carefully to the explanations of the witnesses. Considering again the judgment of the court of last week, there is a strong need to maintain the capacity to review police activities, more in the context of crimes that the police can commit in the course of investigation.
Mr. MacAulay: You are right that nothing can go unchecked. It is not unlimited. There are strict perimeters. RCMP officers have to be designated by the Solicitor General, with advice from the Commissioner of the RCMP and the people who are involved in my department.
It has to be indicated that they are trained properly. These are the people who should do it. That does not get us involved into specific investigations, but it pertains to the overall duties that are required.
Everything an officer does must be reported internally through the system. I have to issue a public report regarding the RCMP. There is also a parliamentary review in three years, which I am sure you will be involved in.
We have the Commission for Public Complaints for the RCMP. All municipal and provincial police forces have bodies that oversee them. There are many safeguards in place.
What is being put in place was done up until Campbell and Shirose came along. The court indicated that if this were to continue, it was up to the Parliament of Canada, of which you and I are a part, to designate the authority with strict limitations to the police force. That is what we are doing.
We do not want duplication. We do not need another body to observe. The evidence that is gathered during an investigation is taken before a judge who hears everything in evidence, including how it was gathered. That is evaluated. The Minister of Justice may be able to explain this better, but I am sure it is all explained to the judge. He would be at liberty to indicate anything that was done inappropriately.
If we do not give the police the authority to do this, my understanding after discussions with police across this country, including the RCMP and other police forces, is that they cannot investigate certain crimes.
There have been some successes in this country, but much of that success was in the drug-related areas, which they can still do. They are successful because they can go undercover and work undercover in drug-related offences. However, they cannot do so with some of these other offences in organized crime. If I understand correctly, even if they used a stolen credit card they would be breaking the law if they were taken before a justice. We are making that legal. There are many areas where it will be known what they did. If the Commission for Public Complaints evaluates a certain situation that is viewed as be inappropriate, then they have access to the RCMP information, if we put it in place.
Mr. Kennedy: One thing that might help to put this in context is the Campbell and Shirose case, which went to the Supreme Court of Canada. That case dealt with a police officer acting undercover and posing as a drug dealer. Police had information that someone was looking for a ton of hashish. The supplier did not happen to be around. The police intervened and posed as a vendor, dealing with a person who was a big time drug dealer. The way the legislation is drafted that police officer, by making an offer in this guise was committing an offence under the Criminal Code by offering to supply drugs.
Since the time of Confederation officers have acted undercover. Consider the scenario where you are working undercover and someone hands you a sample of drugs. You are surrounded by thugs. You then hand the sample back to them. By so doing you have committed an offence. You have trafficked by giving the drugs back. It is virtually impossible to act undercover, doing even these minor things, without violating the Criminal Code. You are doing something either to aid and abet or you are a party. You are somehow caught.
With some of the complex tools that we have acquired since 1974 with technology, for example, with wiretapping and with encryption, making undercover use of human resources is more important. It is virtually impossible to do it unless you say, "Yes, you can do some of those kinds of activities." The courts have said that you cannot fight by the Marquis of Kingsbury's rules when you are fighting this kind of crime. The courts have looked at this before and legal counsel has said: "The police broke the law. Stay the proceedings. Let me go from here." The courts have said "No."
The Mack case that Senator Joyal referred to looked at it and asked, "Is the conduct of such a nature that it is an abuse and the court is offended and it will stay these proceedings?" We have been asking the courts to tell us whether or not we can do this. We have asked them persistently. They kept saying: "We will not rule on it. It is not offensive." Yet the evidence goes in and the person is convicted. The police are left with asking themselves, "Am I breaking the rule or not?"
Finally, in the Campbell and Shirose case, the court says: "You cannot do it. If you do it again, the odds are that the evidence is inadmissible. You cannot do it and undercover policing is in trouble. Parliament must craft the regime." The police are looking to you now and saying: "They are telling us that we must do it. You craft the regime. You tell us where the thresholds are." That is what we are trying to do here, namely, craft the thresholds for you in a new regime. If we do not do it, we will hear from the police that we are in trouble.
Ms McLellan: People need to be absolutely clear. As Mr. Kennedy said, undercover operations have been going on for years, as have successful prosecutions and convictions of people, on the basis of evidence that flows from those operations. I hope that no one here is sufficiently naive to believe that we can deal with even ordinary criminal matters, let alone the sophistication of organized crime or terrorism without putting officers undercover.
The basis up until the Campbell and Shirose case was that these things were authorized by common law. That case finally clarified it and said, "No, you do not get to do this under common law authority." This is a reinforcement of the rule of law. Senator Joyal this goes to your point in terms of respect for the rule of law. The Supreme Court has said: "No, there is not a common law authority, but, Parliament, it is up to you. If you want to give law enforcement authorities this power, then you legislate it so that we know the legal authorization. We know it has been given by Parliament, by people duly who have been elected and are accountable to Canadians and by senators who are duly appointed to the Senate of Canada."
The court said: "You should not do this. You do not have a common law authority and we want you, Parliament, to decide what authority should be given to permit these operations, and the terms and conditions under which they should be carried out." That is what we are doing. We are answering the court by providing this legislative regime, as it relates to limited law enforcement justification.
The court never suggested that we should not be in the business of authorizing police to go undercover. However, they said that, in respect for the rule of law, it must be made a statutory regime. It is on the public laws of the nation and it is transparent. We know who is accountable and we know who will be called to account, including my colleague the Solicitor General, and others, if there are problems or if there is any abuse. Through this statutory regime, we are providing a degree of certainty, transparency and direction as to who is accountable, such as we have not seen in our law before and such as we have not seen in some other countries.
Senator Joyal: I think we have digressed a little. I did not say that I am opposed to the principle of adopting legislation that would authorize, in certain circumstances, the police forces or an individual working under the instruction of the police to commit what is deemed to be a criminal offence.
Ms McLellan: You are concerned about accountability.
Senator Joyal: I am trying to establish some fundamental principles on which to build the authorization given to a police officer to commit the crime.
I tried to circumscribe the system to maintain the fundamental balance that we have in our system to respect the principle of the rule of law. The fundamental respect of the principle of the rule of law is the removal of the discretion or the absolutism given to a party into a government. That is a responsibility.
My concern is that the Poitras Commission, which was the last commission to investigate a police force, namely, the Quebec police patrol force, came to the conclusion that the need to police the police and to have civil control over the police is fundamental and an important element in a democracy.
One of the key commissioners of the Poitras Commission concluded last summer that the bill, as written, does not contain enough control of the police authorization given by your people.
We have a report that clearly concludes that the police need to be under strict surveillance of civil authorities to maintain the balance that we should have in a civil society. We have one of the key commissioners of that report stating that what is contained in Bill C-24, in terms of the control of the police authorization, is not sufficient.
Mr. MacAulay: There can be different opinions on that.
Senator Joyal: Of course. However, someone who has produced an investigative report on police activities over a long period of time, and who has studied the bill and who has studied the status of the police in Quebec, had come to the conclusion that those parties are not strong enough to control the police. I tried to get the views of people who seemed to be professionally involved in the study of those issues.
There was a system contemplated in Britain's police act, as you mentioned, without naming them, in some other jurisdictions. There is a code of conduct where the police would use that kind of special and exotic utilization. I understand that there are elements in clause 25 that covers some of those aspects. We are not creating here a system like the one that the minister offered with the drug legislation that allows them to commit some kind of crime in the course of an investigation. We are giving to the police across the board overwhelming powers, not only to the RCMP, but also to the provincial police forces, not to abide by the Criminal Code and other federal statutes. When that is being done, we have to be sure that the control exists somewhere.
You mention that that control is with Parliament. Let me give an example. CSIS is a body that heads some important activities in terms of intelligence and security. CSIS tables a report to Parliament. There is a body external to CSIS that makes sure that when it does its work, which is needed in a democracy, there is a capacity to monitor its activities. When we receive the reports, we know that it is not a self-disciplining body. There is an external authority that monitors it and makes sure that what it does is done properly, according to the rule of law.
We always come back to the same principle. When the reports come to parliament, they can be weighed.
The comment from commissioners who investigated police and wrongdoings is the same as from the Macdonald Commission 20 years ago. Some of us remember it very well; we were in Parliament at that time. I try to understand, not the giving of those powers to the police, but how to frame the system to give the authorization in order to maintain the control of the rule of law internal to the system. That is essentially what I am wrestling with.
Mr. MacAulay: The officer is designated not by the commissioner, but by the Solicitor General, or whoever is in charge in the provincial areas, such as the Attorney General.
Their conduct has to be for the purpose of the investigation. We do have the commission for public complaints. I believe you were referring to SIRC, who reports on CSIS. We have the Public Complaints Commission, which has the authority to evaluate the RCMP.
When they do an investigation, the evidence is gathered and it all goes before a judge who evaluates the situation. There are a number of reports. I, or the Solicitor General at the time, have to issue a public report yearly.
Mr. Kennedy: The regime does envisage that things do occur, such as the reference to property being destroyed. The person whose property is destroyed must be notified at the termination of the investigation.
If a senior official designates somebody on an emergency basis, they have to make that report. If there is a use of a power in exigent circumstance, there must be a report made and sent up to the Solicitor General.
I know you talked about the Poitras investigation. They were dealing with what has come to be known as "testa-lying." Someone supplemented a case by false documents. That is the kind of conduct that is not allowed here because it is obstruction of justice.
The police technique used here would be to advance an investigation. It results in a criminal charge being laid, meaning that the whole story will be unfolded before a judge on a trial. If there has been any excess or abuse by the police in the exercise of power, a judge will see it. A defence counsel will be there, aggressively attacking the police, because the conduct of the police has go toward the investigation. It must be reasonable and proportionate.
Having been a prosecutor for years, I do not think that we will get an easy ride. They will say that we went too far, because they will hope that the conduct is excessive enough to be struck down.
Therefore, there is, by the nature of the purpose for which the technique is used, oversight judicial, in addition to the oversights we have from the commission, the annual reports, the internal discipline that the force would have, plus any other action. An aggrieved individual can bring a civil action or lay a criminal charge.
When you look at it, you are surrounded by points of accountability that will make sure that these people act properly. The officer is at his or her peril if he or she falls out of the scope of the bill, because the officer is subject to criminal action and charges.
Senator Moore: They will blow the case.
Mr. Kennedy: The case will be gone.
Ms McLellan: Obviously, Senator Joyal, you have looked at these provisions carefully. We have a note that we could provide the outlines for Senator Joyal, and for other members of the committee who perhaps have not looked at these provisions for accountability as closely.
As Mr. Kennedy has outlined, they are quite significant, beginning with the training of police officers, working through up to the exclusion of evidence, criminal prosecution of law enforcement officers, disciplinary proceedings, civil damages against them, and ultimately political accountability, and all the steps in between that involve designating senior officers and the Solicitor General. We can provide you with that simply as a checklist, so that you can see it all in one place.
At the end of the day, it is a fairly comprehensive accountability regime, one that speaks to our commitment to the rule of law and the commitment on the part of police to the rule of law, their desire to make sure that what they do undercover, which is so necessary, in fact finds a statutory basis, and that there is an accountability regime. As Mr. Kennedy has, at least implicitly, said, it serves no one's interests, most particularly those of the police, to be found to have acted in a criminal fashion outside the scope of our proposed new statutory regime. They are the ones who will suffer the most.
By the way, Louise Viau is coming here. You will hear from Madam Viau directly as to her views with regard to this proposed legislation.
Senator Joyal: The Canadian Bar and the Barreau du Québec expressed similar points when they testified before the House of Commons committee. I reviewed the briefs of the various witnesses who appeared at the House committee. It seems that this is a core element of the whole philosophy of the bill.
We will certainly receive additional information from your offices and from the departmental advisers and we will study it carefully. However, it seems to me that this is the key provision of this bill, considering that it is announced as being the anti-biker bill, but it covers the whole of the activities in which the police are now involved, and is very comprehensive in terms of powers that are given to the police.
I think that, because of that dimension of coverage of the bill, we must look carefully at what we are doing here.
Ms McLellan: I do not disagree. The CBA and the Barreau du Québec will be here tomorrow morning, and one respects their opinions. However, as the Solicitor General has said, they are simply one group of people expressing an opinion. You will hear from the police, the people who put their lives on the line every day in the protection of Canadians. You will hear their point of view. I hope that their point of view is treated with due respect because they are the people who ensure that our country and our democratic institutions are not undermined by terrorists or organized crime.
[Translation]
Senator Rivest: Our experience shows that judicial control of illegal action taken by a police force is not all that effective. Just think about the conclusions of the Keable Commission of Inquiry in Quebec. As far as I know, few RCMP officers were punished by the court system, except one or two, for having committed illegal acts. We must be very cautious.
The Minister of Justice could correct the impression she has given on the opinions put forth by the Canadian and Quebec Bar associations. They are not just opinions like any other. These are extremely serious opinions. They must be taken into account. The minister will take them into account on merit. She knows that these organizations are very representative when it comes to rights and freedoms in our society.
[English]
Let me switch to the victims just for a minute
[Translation]
Seizure is a highly effective measure in the fight against organized crime. Do the funds seized go into the government of Canada's Consolidated Revenue Fund or the provincial Government's Consolidated Revenue Fund depending on whether the Quebec police force or the RCMP conducts the seizure? What happens in a joint operation? Is it proportional?
[English]
Do you make a deal?
Mr. MacAulay: Yes, there is a deal. There is always some difficulty with the deal. It is divided between the province and Ottawa. When you go to municipal areas across the country, like in British Columbia and certain other areas, the biggest problem was that the province was doing no sharing with the municipalities. To say there is not some concern about how the sharing is being handled is false; but, yes, it is proportionately shared as to the involvement in the investigation.
[Translation]
Senator Rivest: You know that in Quebec and probably in other regions, people have suggested, to the Minister of Justice or the Solicitor General, that part of these funds obtained through criminal activities be used for a compensation system for victims of organized crime as outlined in this bill. We know that provincial laws - namely, in Quebec, the Crime Victims Compensation Act - are ill-adapted to this type of situation. To the Minister of Justice or the Solicitor General, is there a concern with this at the federal level? Have discussions been undertaken with the provincial governments to determine what proportion of money obtained by government as a result of criminal activity will go to the federal and provincial levels so that victims and their families can obtain government assistance? It is not simply the person who has been injured, there are psychological victims. Are they victims of criminal acts carried out by an identified group in the Criminal Code, according to our legislation?
[English]
Ms McLellan: You raise a good point, senator. When I meet with some police organizations, they make the point that, in terms of sharing in relation to the proceeds of crime, they would like to see some of those proceeds be put back more directly into enhanced law enforcement efforts. However, as the Solicitor General has outlined, the sharing arrangements are government-to-government, federal government to provincial government. What the province chooses to do with those resources from proceeds of crime is left up to the province in whatever proportionate share they receive. It does vary.
It would not be for us to say how those dollars are used. However, let me assure that you that both police and victims' organizations have made the case in the provinces that they should have some recoupment or some call upon the funds that are provided to the province under these sharing agreements. Once the province receives the funds, it is up to them to decide how those funds are used in their province.
Under the Criminal Code, we have something called a victim fines surcharge. That requires a court, in almost all circumstances, to impose a surcharge on the convicted individual in addition to any other sentence. That surcharge goes to the provinces for victims' programs. It does not come to the federal government. That was an arrangement we made some years ago with the provinces.
Where a surcharge is imposed, and a surcharge could certainly be imposed on any convicted person charged with an organized crime offence, those surcharges go to help fund victims' services in every province in the country.
The Chairman: Thank you for coming, ministers.
Honourable senators, we have before us Mr. Auger and Mr. Nicaso.
Mr. Auger, please begin.
[Translation]
Mr. Michel Auger, Journalist, Legal and Criminal Affairs Expert, Journal de Montréal: Madam Chair, my message is clear. I think that we have already waited too long to adopt legislation like Bill C-24. Moreover, this legislation does not go far enough to fight organized crime effectively in Canada. However, even less-than-perfect legislation is better than what currently exists in the Criminal Code.
I will give you an example of how ineffective the act is. In Quebec, at the start of last spring, a huge operation called Operation Spring 2001 was set up: 150 individuals, drug traffickers and Hells Angels leaders were arrested. However, the next day, not a single drug user in Quebec missed his delivery.
It would be virtually impossible to do another investigation like that. Forty-two people were arrested for 13 murders. Organized crime is worse in Quebec than in Canada. That is unfortunately the reason why there are so many victims in Quebec. The matter, because it is centred in Quebec, is not moving quickly enough on the political level. There are no other Hells Angels victims in Canada, just in Quebec, and the majority of crime takes place in the large urban centres like Montreal and Quebec City. Over a five-year period, 160 people have been assassinated, victims of a power struggle among individuals who are attempting to take control of millions of dollars in illegal profits.
In addition to this list of victims, 20 innocent people have been injured or assassinated in this war. I am one of those innocent victims. A woman working in a restaurant was taken hostage, and used to shield an individual linked to the Hells Angels who was trying to protect himself from his assailants. He was a loan shark. When the police arrested him a little later, they seized in his personal effects $5 million in proceeds of crime. Here, it was possible to make the case.
The proceeds of crime in Operation Spring 2001 were not just from the Hells Angels. The Hells Angels are not even the largest organized group working in Quebec and Canada. However, revenues for the Hells Angels alone are one billion dollars annually. The police seized roughly $10 million. The police followed them and counted money every day. Our legal system is 30 or 40 years behind the American legal system. Canadian criminals avoid the United States like the plague. In Canada, however, they share the vision of a prime minister who said that Canada was the best country in the world.
The courts, in Bill C-24, have limited police authority to infiltrate organized crime. Only in Canada is one criminal organization after all of the profits. A criminal is not just involved in drug trafficking, theft or possession of stolen goods, he is an individual who keeps his options open. There is no such thing as small profits for a criminal.
Our courts, in the Campbell and Shirose case, limited the powers of the police. A secret agent who infiltrates a criminal network is only authorized to buy drugs. If someone offers him a stolen vehicle, he cannot buy it, nor can he buy a carton of contraband cigarettes. So it is absolutely unthinkable for the police to be able to infiltrate criminal networks because of the highly restrictive interpretation from our courts.
I think that individual rights are very well protected, but unfortunately, collective rights are not.
[English]
Mr. Antonio Nicaso, Journalist, Author: I realize that time is short and you have much consultation to reflect upon. I would like to provide you with a few quick points on organized crime in Canada.
We are a microcosm, a kind of laboratory, where underworld groups interact, cooperate, commingle funding, share the burden of criminal operations and provide infrastructure to each other. Organized crime operates in every part of Canada. Some groups have their turfs, although no one has a geographic monopoly. Some groups have their specialties, but no one completely monopolizes a market. Organized crime arises in any segment of the society where there is a profit to be made, from the drug underworld to the stock markets. There are no limits except the limits that we can successfully and forcefully impose.
The Canadian Security Intelligence Service estimates that at least 18 groups operate in Canada, and that number does not allow for new groups that break away from mother cells and form their own operations. Organized crime groups are not of any specific ethnic sector, although there are mafias specific in background to Eastern Europe, Asia, Europe and South America. There are also commercial mafias, white-collar cartels that manipulate stock markets, launder money and monopolize segments of industry.
Organized crime feeds all of the needs of society that are forbidden, over-taxed or over-regulated. Many of these are called victimless crimes or non-violent initiatives. I am thinking here of drug addiction and illegal migrant transit and the smuggling of cigarettes and liquor. However, the underpinning of these and other activities is enforcement by violence. Organized crime acts, as does legitimate government and commerce, in the role of provider and protector.
In these times when mighty issues related to terrorism are being dealt with by the Government of Canada and the governments of the world, we must be careful that other serious issues do not fall by the wayside.
The relentless campaign of criminal activity in Canada has been subject to grave underestimation for decades. Due to lack of attention, lack of funding, lack of political will or over-sensitivity to ethnic groups, and, at times, all four at once, criminal organizations have been permitted to grow to an incredible power in this country.
Criminal groups, ranging from small organizations that prey on ethnic communities to truly transnational cartels that operate vast networks, find Canada an appealing place to do business. Canada, within the world of organized crime, is perceived in three ways. It is perceived as a haven, as a transit country and as a source country for drug manufacturing, producing and refinement materials.
As a haven, it only requires a casual reading of media reports to discover the presence of wanted criminals from the former Soviet Union, from Sicily and other parts of Italy, from China and the Caribbean. While entering Canada is relatively easy, remaining here, protected by the Charter of Rights and Freedoms, is even easier. From Canada, these global criminals can make huge fortunes in the U.S market while remaining protected by the laws of Canada. We must ask ourselves why they feel safe coming here.
As a transit country, one must only look to the cartels that bring their product, whether illegal migrants or narcotics, through Canada and into the United States. An example of this is the Caruana-Cuntrera, a Sicilian mafia group, one of the major organized crime groups in the world. They found it easier to ship cocaine from South America around the United States by boat into Canada and then down into the United States market. We must ask ourselves why is organized crime afraid of American laws and borders and not afraid of ours.
As a source country, one must only examine the huge growing number of marijuana operations in British Columbia, an industry that produces a product that rivals the quality of the product of Mexico, and the relative ease in Canada of obtaining precursor chemicals needed in the production of methamphetamine and ecstasy has created a cottage industry that itself reaps significant profits for organized crime. We have to ask ourselves why Canada has turned into the Mexico of the north and become the pharmaceutical support system to the mafias.
Post September 11, perhaps the most successful anti-organized crime initiative will happen, as it seems is the Canadian way, by accident. The crackdown on terrorism will result in a success against transnational criminals and that success can only be called a shameful accident. The impact of anti-terrorism measures has effectively frozen many criminal operations in place. Huge shipments of drugs are piling up in Asia and South America as border control is tightened and massive quantities of drug profits are backing up in Canada. Without reparation of the drug profits, further shipments are halted. Temporarily, organized crime is suffering a collateral damage. All this is good because, currently, there are no significant police operations underway against organized crime: The investigators and resources have been diverted to combat terrorism.
It is interesting to note that, with all the efforts being made against terrorism, terrorism itself has claimed no lives within Canada. Organized crime, however, has claimed more than 150 people in Quebec alone. Is this not a form of terrorism, when children cannot play in the streets, women cannot work in safety, when businessmen who resist organized crime are beaten to death? Maybe the political will and spirit that have somehow emerged to battle the Osama bin Ladens of the world will be focused on the underworld kingpins that call Canada home.
This bill before you is not everything to everyone. Civil libertarians will doubtless find flaws to probe, issues to examine and water to be added to the wine. That is their job and our civil libertarians in Canada are known around the world for their effectiveness.
Law enforcement agencies might suggest the bill is not strong enough, that they need more muscle and more power and more money. They might suggest, and here I agree with them completely, that an integrated policy on organized crime, ranging from correction to immigration, to the judicial system, to taxation, is needed.
Bear in mind that we live in extraordinary times. At this time and place, we have the beginning of a national understanding of the depths of organized crime and we have the right people with the right expertise to do the job. All that is needed is adequate funding, adequate laws and adequate political will. There have been many more incidents of underworld murder than there have been cases of law enforcement abuse.
This bill has strong elements to be proactive, instead of reactive. It can do away with the sad image of fighting organized crime in a way that brings forward a picture of firefighters running from fire to fire, dousing the hot spots, then moving on to the next, only to have the flames arise behind them.
This bill can enhance other Canadian strategies, notably the money laundering legislation and anti-gang bill. The time is right to fit in another interlocking piece of legislation that will strengthen and complete a national strategy against organized crime.
I do not envy you in your efforts to balance the broad spectrum of needs and demands being made upon you. However, I believe it can be done and it must be done.
As you can tell from my accent, I come from a country that has suffered mightily through a century of complacency towards organized crime and has suffered through its relentless corruptions. Please remember that it was only when the mafia of Italy directly attacked the state, murdering judges, journalists, police officials and women and children, and bombed the cultural centres of Italy, that laws were enacted to protect the country.
It was the mafia's fear of the state that led them to these excesses. We should look closely at why. In Canada, we fear organized crime, but organized crime does not fear us.
[Translation]
Senator Beaudoin: Mr. Auger, you say that the legislation before us is better than none at all. You also say that the Americans have a head start on us in this area. Could you tell us how they operate?
Mr. Auger: I would say that the Rico statute, which is more or less the equivalent of the provisions of Bill C-24 in the Criminal Code, is such that organized crime in the United States is targeted.
In Quebec in particular, there was a spectacular trial recently where Maurice Boucher was accused of murdering a prison guard. In his arguments, the defence attorney said: "My client is perhaps a major criminal leader, but how could a criminal leader collude with a little informer?" To undermine the credibility of the witness, the defence attorney used the facts that the individual was a member and a leader of a criminal organization. To the best of my knowledge, using an argument like that to acquit an individual is not customary in court.
If it had been in the United States, Maurice Boucher would not have been accused of murder. He would have been accused of leading a criminal organization which has committed murder, is involved in drug trafficking, and so on. Why? Because it is easier to prove that there is a criminal organization that is to determine who ordered the action. The American prosecutor must show that the organization committed the crime, that there are individuals who follow orders and others who give them.
In Canada, accusing someone of a very specific crime is much more complex. In my case, the police identified the shooter. They are 100% sure that he is the shooter. However, they do not have enough proof to obtain a warrant for a wiretap. They put him under surveillance. They used all kinds of techniques, DNA and all that, they identified up to 15 people who participated in the crime. Each individual did his part. One made the weapon, the other passed it on, another obtained information from confidential government documents, and so on. Other individuals conducted surveillance activities for up to two days before the crime took place outside Journal de Montréal offices. Each person had a role to play and everyone is interchangeable. It is an organization. That is the current difficulty.
The reality of organized crimes here is that our legal system is designed to deal with individuals and not criminal organizations that have become more and more powerful. This reality is the 170 victims of murder in Quebec to gain control of drug trafficking.
Personally, I was shot six times in the back. If a bill like C-24 had been in force, I would not have been a victim. Criminals have just realized the importance of this bill. The act is not even in force, but the Hells Angels have closed their bunker, they have stopped wearing their colours, they have stopped the parades and demonstrations of force.
A young boy was killed three weeks ago in Montreal. He was waiting in line. A member of the Hells Angels was celebrating his having been made a member of the group. He simply used a firearm - that is the charge that is before the court - to wipe the boy out because he wanted to show how powerful he was. This is what criminal gangs of today are like. They use all means - especially illegal ones - to arrive at their goal which in the end, is money.
In my opinion, legislation has not kept pace with the reality of organized crime in Canada.
[English]
Mr. Nicaso: I have some personal experience with the RICO statute. I left Italy after a car bomb attempt on my life. After the first publication of the regional code of the Mafia, I moved to the United States. I had the opportunity to deal with people like Mayor Giuliani, free people who had put much effort into fighting organized crime. I spoke with them many times. They were very pleased with the RICO statute. To fight organized crime, a police officer needs a complete piece of legislation.
For example, recently, in Europe, they passed a charter of rights in which they define association in a very specific way. It says that they would allow association only for political, cultural and recreational reasons, but not for criminal reasons. That would allow them to criminalize membership.
In the Unites States, they use RICO to attack criminal enterprise because the only way to fight organized crime is to hit them in their pocket. Unfortunately, when I said that Canada is an easy spot, there is a reason for that. We have to consider that, before 1989, we did not have money-laundering legislation. It was harder to import cheese into this country than a piece of luggage full of cash, dirty money.
During that time, many criminal organizations moved into Canada. That is because Canada is still an easy place in which to invest money. We should not underestimate the fact that we allow people to invest $300,000 in this country as a landed immigrant. In Quebec, we recently had a case involving the wife of a wanted criminal from Italy. She invested $300,000 in Canada. No one asked her where the money came from.
In 1994, all the leaders of the world signed an agreement at the United Nations summit in Naples. For the first time, they defined organized crime. It was a correct definition of organized crime.
In Bill C-95 there is a definition of organized crime that does not exist. I say that for one simple reason. That is because it refers to five or more people, and formally or informally organized crime. The characteristic of organized crime is the formality of their structure. It is the fact that there is a hierarchical structure. Bill C-24 is a better approach.
It is important to create a national strategy and to deal with organized crime in a different way. In Canada, there is still a much lower risk of prosecution and detention than in other countries, for example, in Europe and in the United States. In the United States, they have mandatory prison terms. Here, we have a Club Med instead of a penitentiary. We do not consider drug traffickers as dangerous offenders. That is a mentality that we should change. We should be thinking about organized crime in a large way. Police officers need a piece of legislation that deals exclusively with the definition of organized crime. They need to do other things to attack organized crime in different ways.
[Translation]
Senator Rivest: The difficulty proving that a crime has taken place is probably what is motivating the government or the authorities to give police additional powers that might lead them to act illegally. Adopting an act, such as an anti-gang law, would make the whole organization illegal. Do you think that the police would also need to be given the authority to take action that is against the law, if, in fact, not having to prove who committed or ordered the murder - in the example that you gave - they could directly attack organizations as such?
Mr. Auger: I have a problem with the definition provided that means the police must commit crimes. I have some understanding of the law, it is rather vague, but in law, for a crime to be committed, there must be criminal intent. The police officer who passes himself off as John Doe, drug trafficker, is not committing a crime when he buys a kilo of cocaine. Why would he be committing a crime when he buys a stolen car? I have trouble saying that the police is committing a crime when it infiltrates a criminal organization. The organizations quickly understood how the legal system works. They have the means they need to obtain the best legal counsel, the best accountants, the best specialists, and they are very strong in the area of criminal intelligence. They know exactly how to operate. In some cases, gang leaders have whispered orders into an individual's ear who then passes them on to others. Even with sophisticated wiretap and surveillance equipment, all you see is someone whispering in another person's ear. To infiltrate and understand these organizations, and to obtain evidence, one of the techniques used has been after-the-fact informers. The arguments in court are that these informers have no credibility. Defence attorneys try to undermine their reputations to obtain another point of view. In the case of a structured criminal organization, an effective tool that the police has used has been to infiltrate the organization, because surveillance like using the Internet for communication, secrets and multiple transmission have been unsuccessful. The only way of providing proof of the group's activities is through an individual who, after several months, earns the confidence of some members and carries out certain acts that, if they are for his benefit, are illegal, but if they are part of police intervention, are entirely acceptable in society.
If a criminal piles up cases of contraband products and stores stolen cars at his home, society can easily tolerate that kind of legal possession for a few months, for the duration of the operation, because it is always for a limited period of time. The police cannot conduct an infiltration operation that will last years in this case. It is absolutely unthinkable. The police cannot commit violent acts against individuals. I have been a journalist for 37 years and when I was young, I occasionally saw infiltration operations carried out by the Americans where that was entirely permitted.
Here, our police officers did not have the means to do that. They conducted infiltration operations during prohibition. Over time, the courts have limited the powers of the police. They have made the situation so complicated that our legislation must now be reviewed, 30 years later. Society must use effective means to deal with the activities of criminal groups.
[English]
Mr. Nicaso: I would like to remind you that criminal organizations are secret societies. It is very difficult to dismantle them. Recently, I argued with the Solicitor General at the annual conference of chiefs of police in Saskatoon when he said that we are winning the battle against organized crime. I do not think we can win the battle against organized crime. We can control organized crime.
In saying that, the only way to dismantle, in someway some groups, is to infiltrate them. In order to infiltrate them, police officers and undercover agents should gain their trust. To gain their trust, they have to commit some kind of crime. I think Bill C-24 is a fair piece of legislation because it confers immunity on police officers, with the exception of murder, sexual assault or contempt of court. This is not a bill that the Department of Justice started from scratch. It is a bill that takes into consideration the North America and the European experience. In Europe, especially in Italy, Germany and France, they use this kind of undercover operation, especially when they deal with drug trafficking.
That is why I think Bill C-24 is fair. The only suggestion is that the court should supervise this process in some way as, for example, the Italian courts are doing with similar legislation, and as is being done in Germany and France. We should probably take a look at their experience to avoid this concern about police officers being granted extraordinary powers. I do not think these are extraordinary powers.
Narcotics is a problem that affects everyone because drug traffickers are merchants of death. They are selling death. They create addiction. That is how we should see drug traffickers. They are very dangerous people.
[Translation]
Mr. Auger: Some people have probably mentioned judicial control to say that operations should be conducted under a warrant. It is virtually impossible to obtain effective service under a warrant because no one can predict where the infiltration operation will lead the undercover officer. The reality is that the police's goal in conducting an infiltration operation is to arrest people. When evidence is brought before the court, the judge may, at that time, if the evidence is circumstantial, examine the police's methods before accepting the evidence. If police action goes beyond what society deems acceptable, the evidence is simply deemed inadmissible.
Today, even with warrants for wiretaps, the judge hearing these cases will decide if the police had sufficient grounds for obtaining a warrant. Even if the evidence is obtained legally, if the warrant is issued as a result of statements that are a bit too generous on the part of the police officer who signed them, if the judge refuses to allow the recordings in court, even if they prove an individual is guilty, the evidence is not admissible in court. Society can take precautions against potential abuse by the police when the evidence is brought to court.
Senator Joyal: You mentioned the role of the courts when they review the way in which police forces carry out their responsibilities in conducting their investigations. You have hit on the act's main trouble spot. The majority of my colleagues are not opposed to the idea that, in order to fight crime, the police, in certain circumstances, must use means that under normal circumstances run counter to the provisions of the Criminal Code or other acts in Canada.
We are trying to find a balance between the ultimate objective, which we all support, and the need to ensure that the police, when it conducts these operations, does so with a minimum level of surveillance so that there is no abuse.
You have been a journalist for 37 years; you can say a lot more about all of this; we have seen inquiry commissions like the McDonald Commission, the Keable Commission, the Poitras Commission. You have undoubtedly followed the work of these commissions as part of your professional duties. Our concern is to ensure that the police can have these exceptional, exorbitant powers in certain circumstances and that it can have some kind of after-the-fact review power in certain cases. Sometimes, as you say, a double agent cannot wait for authorization. He is in the middle of an operation. The system must have the ability to monitor these operations to protect the objectives and the principles that we want to respect and that are the foundation of our democratic system.
That is important because it enables us to maintain the credibility of our police forces and obtain co-operation from the public. As you have probably written on several occasions, public co-operation is essential for denunciation and gathering the necessary evidence to reach our objectives.
We are concerned with that aspect. I can understand that in many circumstances we cannot stop an operation to appear before a judge. It is perhaps not very useful to appear before a judge, because to do so to request authorization to commit a criminal act is somewhat of a contradiction by definition.
We need some kind of mechanism. The Poitras Commission examined that and made recommendations to look at how we can maintain the effectiveness that you are seeking and that, thank goodness, we are all trying to protect, while maintaining the principles, in the words of the Commission, that police the police. There are cases, and you have reported on them in your paper, where we must make sure that the police does this ethically, in spite of everything.
Members of criminal organizations have no ethics, they have only their own interest in mind. Law enforcement agencies represent law and order in our system. We must maintain the confidence of the people in this system. What do you have to say about this requirement?
Mr. Auger: A lot of paperwork goes into obtaining a warrant for electronic surveillance. Society has set limits. Until 1974, police officers did wiretapping but this evidence could not be used in court. They used the information derived from the wiretapping.
Wiretapping was included as admissible evidence in the Criminal Code in 1974. A judge would first examine the evidence, the police officer's affidavit and the entire file. Wiretapping was only used as a last resort after it was demonstrated that nothing else would achieve the required results. A great deal of work has to be done beforehand.
In the case of electronic surveillance, you might think it would be easy to simply tap Mr. Joyal's home telephone, or the phone in his office or in his car, etc. We do not know what will happen along the way. Police officers might have to add other telephones. It is a very technical process.
In a police infiltration operation, if we ask a police officer to infiltrate a two-person network, three weeks later, he might end up with 24 other people. It is impossible to know what will happen. How can a judge sign an infiltration warrant? What good would it do? The investigative powers of the courts can only apply if the use of infiltration leads to an arrest. At that point a judge who is independent of the law enforcement agency can properly examine the evidence. This can be done through a preliminary application by the defence to examine the police evidence and the methods that were used.
This can be done after the infiltration takes place but not before. If a police officer undertakes a two-day infiltration operation, if a warrant is made available, and if the target of the wiretap has access to the legal documents, then someone is liable to end up dead after certain facts are made public in court. The information has been used to commit a crime. Criminal organizations have access to a great deal of information, including evidence, that they can then use to get rid of troublesome witnesses. That is what happened when certain individuals who were being sought by police planted bombs while a Canadian judge was on a commission to take evidence in the United States. They managed to get the name and address of an American informer. Two days later, that person was killed by a bomb. The principle may be fair, but, unfortunately, it can be used by criminals who are looking out for their own interests.
Senator Joyal: Mr. Auger, you gave us a good description of the concentration of criminal groups such as the Hells Angels, the Bandidos and the Rock Machine. They have widespread operations in Quebec. You have been examining Quebec for 37 years; why is it that these individuals have set down roots in Quebec yet have not expanded elsewhere in Canada? As a journalist, can you help us to understand why in certain areas, members of these criminal organizations are treated like celebrities? I will not refer to any known person.
Senator Rivest: That is the whole idea of a distinct society!
Senator Joyal: I would like to hear what you have to say about that. You have been a first-hand witness to this phenomenon. My colleagues from other provinces read the newspapers and wonder what is happening in Quebec that does not seem to be happening elsewhere.
Mr. Auger: I often say that it is our own little distinct society. It is only happening in Quebec. I have trouble enough keeping up with journalistic techniques, legal techniques, and a little criminology. What you need is a sociologist.
I plead guilty. As a journalist, I imagine the media are partly to blame for helping to make celebrities out of some individuals. We saw that in the early 1980s. Someone named Richard Blast, who has since died, became a popular hero because he sent photos to a journalist who wrote a humour column in the Journal de Montréal.
They wrote back and forth. Our criminal even sent in photos of his guns. This person became a media star even though he was one of the first psychopathic killers. He had, at one time, killed 13 people by locking them in a nightclub.
Other members of motorcycle gangs became well known simply because of an acquittal or a triumphant exit from a court house. From that day on, people had a different opinion of them. One of these gang members was transformed from someone who had been charged with murdering two prison guards into a media celebrity. All he did was to mug for the TV cameras when he appeared in court. He did not utter a single word, all we saw of him, whenever he was arrested, was his big smile. He looks like a Hollywood star. Nothing else is important.
I was shot 17 times because I spent my days describing the illegal activities of these individuals. They love to be seen rubbing shoulders with radio or television stars at weddings or other similar events. They do not want their darker side to be made public. Some of these people are accused of a series of murders, but they do not want that in the newspapers. They want to appear as news celebrities. We did not really create the personality, but through a few simple actions by the media, the individual has become larger than life.
So I really can't answer your question. I think this happens only in Quebec because outside that province, criminals do not have the same appeal. Nor are they given the same media coverage. I cannot tell you any more because I have no real explanation for it.
[English]
The Chairman: Perhaps Mr. Nicaso would have an answer as well. It is interesting that Mr. Auger's own profession is partially responsible.
Mr. Nicaso: It is very difficult to create an authority to keep watch over the undercover operations. Police officers, when they infiltrate a criminal organization, should cut their links with the world in order to gain the trust of a criminal organization. They have to become one of them. It is very difficult to have other people monitor their activities, and it is impractical. You could create an authority to review their activity every three months or every six months, but there is no way to physically monitor their activity. It is too dangerous for the people involved in the undercover operation.
Of course there should be a trust with the undercover agent. We must not forget that they infiltrate criminals, not church ministers, so they deal with very dangerous people. We should give more emphasis to the rights of the victims of organized crimes instead of the rights of the criminals.
On the second question, I do not think Quebec is a distinct society. When I left Italy, I decided to start studying the Mafia and other criminal organizations, and I started to travel around the world to study the Russia Mafia, the Japanese Mafia, the Triads, et cetera. When I came to Canada, I realized that I had all of them in one place, with one important aspect. Instead of fighting one another, in some cities they work together, because English or French becomes an Esperanto for them. Previously, language was a barrier for them, but now they had the same goal, the same attitude, the same way of thinking. If you analyze each of these organizations, you find that they are very similar in structure, in their way of thinking, and in their mentality. There is a glamorization of the Mafia, but that is a mystification of reality.
In Canada, we have at least 18 different organized crime groups. In Quebec, for example, we had a consortium where members of the Hells Angels were shareholders with the Italian Mafia, the West End Gang and the Colombia cartels. They bought narcotics and shared the profit because the language was not a barrier any more.
Why do we continue to see them in a very distorted way? It is because no one at the federal-provincial level has decided to invest money to demystify organized crime or to change the portrait of organized crime. We rely on Hollywood to describe and to study organized crime. The government lacks public relations when it deals with organized crime. Government should invest money to study organized crime and to portray the real face of organized crime, not the portrait of a Soprano or the Godfather. It is a totally different reality.
Senator Cools: Mr. Nicaso said that Canada is a haven for criminals. I think we all know this deep in our hearts. I served on the National Parole Board for a period of time, and I have very vivid memories that every criminal travelled with a Canadian passport because it was easy to get.
On the second page of your statement, Mr. Nicaso, you say we have to ask ourselves why organized crime is afraid of American laws and borders and not afraid of ours. I will ask you to expand on that statement in the light of an accusation that we frequently hear, which I believe is wrong, but we are told it again and again. I have seen data that says it is wrong. We are told that Canada has the highest incarceration rates in the world. We are told that more people are in prison in Canada than in any other country. A few weeks ago we dealt with the youth justice system.
The Chairman: It was more youth, not adults.
Senator Cools: The minister told us about the higher figures for youth, but if one goes through the literature for adults, frequently those incarceration rates in Canada are much higher. That is a commonly stated phenomenon. I did not say that is the case for this committee necessarily, but in general.
Could you address that? Your statements say essentially that organized crime and criminals find a haven in Canada. We are often told that we are soft on crime. At the same time, we are told that we are harsh because there are so many people in prison. Have you given this any thought? I have read some of these files and I know the people about whom you speak, and they are beyond sinister.
Mr. Nicaso: On many occasions I have defined Canada as a welcome wagon for organized crime. That is for one simple reason. According to criminal intelligence services, we have at least 18 different organized crime groups in this country. They move their resources and they invest, work and operate in this country. We must ask ourselves why they love and come to Canada. I have an answer for that. Before 1989, we did not have money-laundering legislation.
I have just published a book on one of the major organized crime groups in Canada, and in the 1980s they deposited more than $35 million in cash in five Montreal banks without problems.
After the Campbell and Shirose decision, the kingpin of this organization was under surveillance. He told fellow drug traffickers: "I do not go in the United States. I feel safer in Canada." He is not the only one who says that.
This man admitted that he imported into Canada 1,500 kilograms of cocaine. He received a conviction for 18 years. He will be released in 2003. He is now in a medium security detention facility in Northern Ontario. He is wanted in Italy, where he had two convictions, one of 30 years and another one of 21 years for international drug trafficking and his Mafia associations. He is wanted in Germany, England and France. He was arrested in Canada in 1998, convicted in 2000. He will be released on parole in 2003. This is the way we deal with drug traffickers in this country.
We did not have a currency law before January 2000. That is why we have a concentration of organized crime in Canada. When I said that Canada is a welcome wagon for organized crime, it is because it is relatively easy to enter and leave the country, because we do not require visas for people coming from Europe, we do not have a system to check people and we have cases where people are wanted in Italy and they are living in Montreal without a problem.
We wish to focus on the traditional organized crime, but we must also look at the Russian Mafia, the Colombian cartels, the Triads and so forth. Why are they all in this country?
Another aspect to this issue is mandatory prison terms. In the United States, three years means three years; in Canada, three years does not mean three years.
It is very easy to get a Canadian passport. A good example is the situation with Ahmed Ressam, who was arrested at the Canada-United States border. He was planning to bomb the Los Angeles airport.
Senator Moore: In her presentation, the Minister of Justice said that organized crime is not just a big city problem. On page 2 of your brief, you said that criminal organizations have been permitted to grow to an incredible power in this country. Can you quantify that or give us some idea of the breadth of organized crime and what it means in terms of financial and human cost? Have you looked at that in your studies?
Mr. Nicaso: For many years in this country, we have believed that organized crime was an ethnic problem. We then learned that before Confederation we had the Markham Gang that was powerful in international organized crime activity and that was before immigration.
People do not realize what organized crime is and means. Organized crime is not just a group of criminals who work together; it involves political and financial connections. If we do a survey, no one will tell you that those who commit white-collar crimes are criminals. If the criminals engage in some illegal activity and get huge profits, they need their connection with the financial system to capitalize that profit. Otherwise, they will put the money in a basement, but they are not worth anything if they cannot capitalize on that kind of profit.
People do not realize the impact of organized crime in our lives. Organized crime is not only a Quebec problem. In the Toronto area we have more Hells Angels members than the entire province of Quebec. This is not a problem that is related to Quebec, it is a problem related to this country. Our perception of organized crime is wrong. For example, the parole system is an international joke. We do not consider drug traffickers to be dangerous offenders. I do not know why they are not dangerous offenders. Drug traffickers sell death. They create addiction. They create additional cost to our health system. That is the way we should portray organized crime, not the way that Hollywood portrays them. They do not have honour. They do not have a sense of respect. They kill innocent people. They kill women and children.
There is no mafia value or tradition for respect. There are many other criminal organizations such as the Yakuza and the Triads. They are all the same. Their goal is to make money through political and financial connections.
Senator Moore: Mr. Auger, do you wish to comment on that?
[Translation]
Mr. Auger: Organized crime can impact the entire country. It affects all regions. In some areas it can affect business. First of all, in a number of provinces, including Quebec, Ontario and the Maritimes, organized crime controls the sex trade, exotic dancers and drug trafficking. Profits from these operations are reinvested in a parallel economy.
They say that society in general benefits somewhat from organized crime and the proceeds of crime. It is true that criminals are big spenders. They buy works of art, expensive vehicles, they travel a lot, they like to live in luxury and they have big houses. They are heavy consumers. That is where some of their profit goes. Another part is used for loan sharking. That is one of the biggest problems in Canada's larger cities.
Since the government replaced the mafia in the gambling industry, there has been an increase in the number of compulsive gamblers. When I began my career, Cotroni, who was the mafia boss at the time, told me that his organization was benefiting society. Sometimes I wonder whether things were not better when Cotroni was involved, as today we have ministers of finance who are constantly looking for ways to increase their revenue. The gamblers have helped to fill the government coffers, but at the expense of some people who cannot help but gamble. It used to be illegal. People did not frequent gambling houses because it was socially unacceptable.
Violence is only the tip of the iceberg when it comes to organized crime. Many families are affected by drug abuse among their loved ones, etc. Criminal organizations are also involved in car theft. It might not be as obvious in small towns or out in the country, but it does exist. Drugs are available everywhere. There is not one corner of the country where you cannot buy drugs. And I am not only talking about soft drugs but hard drugs as well. Even though the problems might be different in different areas, nevertheless, they exist everywhere.
[English]
The Chairman: Thank you very much for appearing before us. I want to congratulate both of you gentlemen because you are both very brave individuals.
We have our next panel of witnesses here. Welcome, gentlemen.
Giuliano Zaccardelli, Commissioner, Royal Canadian Mounted Police: I am honoured to be here. I have with me Assistant Commissioner Bill Lenton, and he is also available to answer questions.
I will highlight the following: first, the impact of the decision rendered by the Supreme Court of Canada in Campbell and Shirose on law enforcement in Canada; second, how the proposed legislative change will enable law enforcement agencies such as the RCMP to be provided with the appropriate tools to investigate criminals and criminal organizations; and finally, how the RCMP policies emphasize the importance that we give to checks and balances in the application of the proposed legislation.
I have a few words about the impact of Campbell and Shirose. The prime objective of the RCMP has always been to ensure public safety. To ensure safe homes and safe communities, we need to combat organized crime and criminal activity.
One of the techniques used by police officers to investigate those organizations involves infiltrating these criminal groups. The Campbell and Shirose case dealt with a reverse sting operation targeting high-level drug traffickers where undercover RCMP officers infiltrated an organization of serious drug traffickers.
On April 22, 1999, the Supreme Court of Canada rendered a decision in Campbell and Shirose that has had a serious impact on law enforcement in Canada.
The highest court in our country made it clear that police officers are not agents of the Crown and thus do not benefit from Crown immunity unless specifically exempted by statute. The court stated that if some form of public interest immunity is to be extended to the police, it should be left to Parliament to set out the nature and scope of that immunity. This is precisely what Bill C-24 does.
[Translation]
Following that decision, the RCMP imediately suspended all of the operations that would put our members or their agents in conflict with the court's decision. The results were, of course, quick in coming. There are a large number of investigations that can not be undertaken or, if they go ahead, they are so limited that the chances of succeeding are quite slim.
[English]
Police need the ability to engage criminal groups through the use of proactive undercover investigative techniques that may otherwise be unlawful. The effect of the Supreme Court of Canada decision on undercover operations has been devastating. Our undercover operations have now come, in a number of areas, to a virtual standstill.
I want to give you several examples of such operations, because we often hear about these most outrageous types of scenarios that are discussed in public. I will tell you some simple things that we cannot do. Because of the Campbell and Shirose decision, it is presently unlawful for members of police organizations who are conducting surveillance, for example, to operate a boat at night without navigation lights. Obviously, this impacts on our ability to conduct covert surveillance along the coast. It sounds very simple, but if you cannot turn on your lights at night you cannot operate that boat. It puts our people in serious danger and harm.
It is illegal to allow an agent to offer a bribe to a corrupt official, even where the bribe was suggested by that official.
The ability of the RCMP to investigate this sort of corruption has been severely limited by that decision. It is impossible, because of that decision, to purchase counterfeit currency without violating the law. It is impossible for us to purchase contraband alcohol or tobacco products in the course of an investigation, even though the CDSA allows the police to do so with respect to illegal drugs. It is illegal to purchase counterfeit travel documents, such as visas and passports when investigating immigration frauds or smuggling of immigrants.
Most controlled deliveries of goods, other than those permitted in the CDSA are illegal. These are not outrageous examples. These are bread-and-butter issues for law enforcements agencies and police officers to provide the security that our citizens demand of us. Police need the ability to engage criminal groups through use of proactive undercover investigative techniques that may be otherwise unlawful.
Our international partners have felt the impact of that decision. We have not been as effective in responding to requests for assistance from our international partners. For example, in one of our files with the USINS, which covers U.S. immigration, we were not able to assist on an investigation because it would have required undercover techniques that would have violated the spirit and letter of the Campbell and Shirose decision. In most cases RCMP investigators are now limited to physical or electronic surveillance of criminal organizations, which proves to be less effective as an investigative strategy.
This prompted a proposal developed to amend the Criminal Code by providing an immunity exemption for both the police and their agents, allowing them to undertake investigative activities that would otherwise be unlawful. This is represented in Bill C-24.
The RCMP has been hesitant in speaking out as to what investigative techniques can no longer be undertaken as a result of Campbell and Shirose. The reason for this silence is that we do not want to alert the criminal element as to the limitations now placed on police that may provide them with a sense of security. This proposed immunity legislation is not about increased police powers. It is about re-establishing the tools used by police to attack criminal activity prior to the court decision in 1999. We want to get back to that level playing field that existed, and to which everyone in society says we were entitled, until that decision.
[Translation]
Many of our present laws do not need to be amended or improved and police officers should find other investigative techniques.
[English]
Other investigative techniques alone are not efficient. In some circumstances, they are completely ineffective. For example, wiretaps are time-consuming and less effective with the technology evolving so quickly. Physical surveillance assists us in identifying suspects that are meeting, but leaves us guessing about what the nature of the meeting was. What is needed is a combination of techniques, including undercover operations, strategically deployed to meet our investigative needs.
We have to keep in mind that, for any investigation, in order to get the best results possible we must keep the length of the process short, thus maximizing our efficiency while limiting as much as we can public exposure to ensure its safety and security against organized criminals and terrorists. Prolonged investigation equates prolonged victimization.
This legislation is about essential tools that allow the police to combat organized crime and criminal activity. Not being able to infiltrate these groups due to the current state of the law puts all of us in jeopardy. Even the Supreme Court recognized that the police cannot sit passively in fighting organized crime.
There is a fear that the proposed legislation will create a situation where the police officers on the street will have carte blanche to breach the law. This is simply untrue and it causes me great concern if this is the perception that exists in our society.
Clause 25.1 requires that designations by the competent authority be made on the advice of a senior official of the department concerned. This is a fundamental protection from abuse of the immunity provisions. As a law enforcement organization, we are very conscious of the importance of checks and balances and the role that they play in a just society. The policies that the RCMP have in place and that have been followed pre- and post-Campbell and Shirose are very restrictive. They are usually more restrictive than the law.
As an example, one of our policies deals with the reverse sting technique in the Controlled Drug and Substance Act, which specifies that this investigative method, although permitted by the regulations of the CDSA, may be authorized by an RCMP senior official only in exceptional circumstances and providing that the reverse undercover operation can reasonably be expected to lead to the apprehension and prosecution of the instigators and high-level perpetrators of major crime.
The law does not require us to do that, but we have put that in as another check. Police and police organizations are accountable for their actions. Clause 25.3 contains a provision for the filing of a written public annual report by the competent authority, in our case this is the Solicitor General of Canada, relating to the use of the immunity provisions under Bill C-24.
In addition, clause 25.4 requires that written notification to senior officials be given whenever the immunity privileges are used and serious damage to property results. Accountability for police activities already exists in the criminal court through disclosure provisions and in the trial process where actions must pass constitutional muster and are subject to scrutiny by the judiciary and the public.
Civil courts and various other public review processes are also available. There are also external bodies, such as the External Review Board and the Public Complaints Commission, which hold the RCMP accountable for their actions.
The major concern expressed is the accountability from the police community to society. Within the Bill C-24 context, the RCMP is committed to having specialized training for their members as well strict policies in place in order to monitor and control operations using provisions of this bill.
This proposed legislative change by Parliament will put us in the same position as we were in prior to Campbell and Shirose, with the added checks and balances that this proposed legislation creates.
The rule of law has always guided the RCMP operations. The Supreme Court of Canada has left it to Parliament to grant these powers to the police. You have heard me say this many times and in many forms that the rule of law is absolute. That is not to say that we do not make mistakes from time to time. The proposed legislation provides certain authorities to commit certain acts that would otherwise be violations of the law, but with clear accountability built into this process.
[Translation]
It is clear that the intent of the new law is to ensure that this immunity only be granted to law enforcement officers for important cases where it would be necessary to resort to the use of these tools in a complex and modern society, where criminal and terrorist organizations operate and threaten the safety of our societies.
[English]
From an RCMP perspective there are two words that are the basis of this legislation. They are reasonableness and proportionality. What police do must be reasonable and proportional to the type of investigation or the seriousness and type of offence.
Policing is the most scrutinized profession in Canada. Our actions are scrutinized by the criminal courts, the civil courts, the media and a variety of oversight mechanisms. I challenge anyone to find a profession more scrutinized, more looked at and more dissected than policing. We understand and accept this reality. That will continue under this legislation.
[Translation]
Mr. Vince Westwick, General Counsel, Canadian Association of Chiefs of Police: Honourable senators, I am Co-Chair of the law amendments committee of the Canadian Association of Chiefs. I have with me Julian Fantino, Chief of Police for the City of Toronto and Co-Chair of the Canadian Chiefs of Police organized crime committee, as well as Peter Cuthbert, Executive Director of the Association.
The Canadian Association of Chiefs of Police represents 950 chiefs, deputy chiefs and executive members of police services, as well as 130 law enforcement agencies throughout Canada. The Association seeks to progressively amend the acts related to crime and issues involving community safety. It is an honour to be here today to discuss Bill C-24, an Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts.
[English]
Before asking Chief Fantino to speak I would like to make a short but important comment on clause 11 of the bill dealing with the creation of the new offence of intimidation of a justice official. It would be section 423.1 in the Criminal Code. This is of particular importance. This creates an offence and a penalty scheme for those persons who are apprehended and prosecuted for intimidation of a justice official.
While I agree with the provision, I would make the strong submission to you that because regrettably few perpetrators of this type of offence are caught, there needs to be in place processes to respond to situations of intimidation when they are occurring. This is extremely important to the persons being threatened, and their families, but equally important to ensure that the system continues uninterrupted when subjected to this type of attack.
Mr. Julian Fantino, Chief, Toronto Police Service, Canadian Association of Chiefs of Police: We have been advised that this honourable committee is particularly concerned about the provisions that address the justification for police who are involved in activities that would otherwise constitute criminal offences and the Campbell and Shirose Supreme Court decision.
We appreciate that the Senate is giving these provisions careful review. We hope that today we are able to alleviate some of your concerns. These are very important provisions and are critical to successful investigations of organized crime. Therefore, I wish to make some points in relation to these sections and to address concerns that there is a potential for police abuse if these provisions become law.
The provisions that are before you today do not create new law but merely codify what is already the criminal law, as well as the practice that has been employed in Canada for many years. Since under the common law there is no history of abuse in Canada, it is most unlikely there will be abuse under these provisions. The Supreme Court of Canada in the Campbell and Shirose decision did not decide that the common law was wrong or contrary to the public interest. It only indicated that these kinds of matters ought to be addressed by statute.
Bill C-24 has many built-in protections to ensure that these provisions are not abused. This is not a carte blanche prescription for police to break the law. The police sector is the most regulated sector of any public or private enterprise. Police are more regulated than lawyers, doctors, accountants or any other official who holds a position of public trust. The courts in this land consistently hold police to a high standard of behaviour, and will continue to do so.
The provisions of this bill will not be utilized by the patrol officer on the street, as has been suggested by some, but by only a small group of experienced and highly trained investigators engaged in very specialized investigations. Only those people will be duly authorized to engage in these investigations.
In addition to the built-in provisions and the regular police oversight provisions that exist, police services will have in place internal checks and balances to ensure the appropriate use of these provisions. It is inappropriate to create an artificial reverse onus situation presuming that police in this country would abuse these provisions. This is Canada, a sophisticated, democratic society where police do not police our citizens, we police with our citizens.
Why are these sections so important? These provisions are necessary to create an enforcement situation dealing with the threat of organized crime. The most successful way to investigate organized crime is to infiltrate their operations, a difficult task at the best of times. Their members are both insulated and isolated and very suspicious of police infiltration. Without these provisions, police will be unable to accomplish infiltration and will be seriously limited in their operations and effectiveness.
These provisions are complicated, and to ensure the highest levels of integrity and compliance in their application, we believe that further steps can be taken in respect of enhancing accountability. We strongly recommend that there be detailed training provided through a comprehensive package prepared in partnership, for example, between the Canadian Police Association, the Royal Canadian Mounted Police, the Department of Justice and any other entity with a say in this matter. Distributed nationally, this package would outline in detail the steps to be taken to ensure compliance and of course accountability. This is more than just the usual comment about police training; it is an issue of accountability to its highest level, a mechanism of accountability.
Organized crime is not a mere inconvenience; rather it represents a serious threat to Canadian society. Its tentacles reach into many areas with enormous costs, both human and monetary. Organized crime is made all the more insidious by the low profile it requires to thrive. It works to maintain that low profile.
Police need the tools found in Bill C-24 to assist in the investigation and prosecution of organized crime. Bill C-24 represents a significant enhancement in our collective efforts as a Canadian society to achieve two critical outcomes, namely, public safety and officer safety.
[Translation]
Mr. Mike Niebudek, Vice-President, Canadian Police Association: Madam Chair, I would like to thank you for having invited us. I have with me Mr. Yves Prud'homme who will speak after my introduction.
[English]
As the national voice for 275 member associations and approximately 30,000 frontline police personnel in Canada, we welcome this opportunity to appear before the committee today in support of Bill C-24.
Organized crime affects all Canadians, undermines our economy, reduces other security and threatens the integrity of our political institutions. There are disturbing and significant trends evolving in organized crime in this country, including increased violence and the use of threats, intimidation and violence against victims, witnesses, public officials, police officers and even members of the media.
It is ironic those though choose to flagrantly live outside the laws of Canada are the first to seek refuge and protection from those same laws when confronted with prosecution. By taking advantage of the best legal defence money can buy, the sophisticated criminal will challenge complex legal issues and strict technical compliance of changing rules of law enforcement.
Bill C-24 goes a long way to address these concerns. There are essentially four components of this bill, which are addressed in our written submissions. In the interests of time, I will only speak now to two items of particular concern to the Canadian Police Association.
Our first concern relates to protecting law enforcement officers. On April 22, 1999, the Supreme Court of Canada, in Campbell and Shirose, ruled that the principle of Crown immunity does not cover the actions of a police officer who violates a statute, notwithstanding that these actions were taken to further a bona fide criminal investigation. As a consequence, legislative amendments are required to permit the use of undercover officers and agents to further sophisticated criminal investigations.
Parliament has previously created exemptions from the offence provisions of certain statutes for a police officer engaged in law enforcement principally within the enforcement of controlled substance and drugs acts and proceeds of crime offences legislation.
A broader base of exemptions of police officers involved in criminal investigations is required in order to ensure effective enforcement and to suitably protect officers from liability.
We welcome the amendments contained within this legislation to provide restricted criminal liability for police officers authorized to conduct these types of investigations. These protections are necessary to ensure that police officers have the ability to infiltrate organized crime gangs, to develop human intelligence about gang activity and to gather evidence against high-level gang officials.
Critics of the bill have raised concern about the immunity granted to police under this bill. We believe many of these claims are exaggerated. However, we recognize that protections from abuse are an integral part of our democratic framework.
Police officers are the most highly regulate and scrutinized profession in Canada. Perceived abuses of any authorities are and will continue to be investigated to the full extent of the law.
The second point we would like to discuss relates to the resources for organized crime investigations. While the announcement earlier this year of $200 million in new money over five years to the RCMP was encouraging, this is only a small step in the right direction for the government.
Organized crime investigations are resource intensive, costly, highly technical, complex and lengthy endeavours that require persistence, support and the coordination of information and effort through all enforcement agencies. With investigations costing tens of millions of dollars, this only goes a short way and does nothing to support the investigation of national and international crime figures by local, provincial and federal police and law enforcements agencies.
Recent staff reallocations within the RCMP in response to terrorism concerns are a prime example. According to the RCMP, 2,000 police officers have been drawn from other enforcement duties to respond to the terrorism crisis. These officers were taken from assignments previously considered to be priorities, such as fighting organized crime and providing front-line policing in their communities. Many of those jobs have been left unattended as the RCMP scurries to deal with the latest crisis within its current budgetary restraints. Officers previously assigned to organized crime priorities have had to abandon some of those investigations for their current anti-terrorism assignments, which are also very important.
Although politicians at all levels are quick to talk the tough talk in fighting organized crime, most police services have faced tight budgetary constraints for organized crime investigations over the past several years. Failing any meaningful enhancements to policing levels, we submit that public safety could be compromised in the long term.
In closing, we appreciate the attention that the Minister of Justice, the Solicitor General and their officials have dedicated to this effort. We are pleased to convey our appreciation and support.
The Canadian Police Association remains committed to working with all members of Parliament, the Senate, the Government of Canada and other stakeholders to address this significant public safety concern.
[Translation]
Mr. Yves Prud'homme, President, Fédération des policiers et policières municipaux du Québec: Madam Chair, thank you for having allowed me to appear so that I may, along with the representatives of our national association, the Canadian Police Association, express our opinions on Bill C-24. I might briefly remind you that the Fédération des policiers et policières municipaux du Québec represents 115 labour organizations, representing almost 8,500 municipal police officers in Quebec including the members of the Fraternité des policiers et policières de Montréal.
As you are no doubt aware, the growing phenomenon of organized crime in Quebec, as many have just said, particularly motorcycle gangs, has, over recent years, brought the representatives of police services to request that legislators adopt anti-gang legislation in order to fight this special type of crime. You will no doubt agree that the criminal motorcycle gangs are made up of individuals who have no scruples and who do not hesitate to commit the most despicable crimes involving the death of innocent victims. These crimes that I would call exceptional, require, in our opinion, means that are just as exceptional in order to put an end to these acts of unparalleled violence.
We therefore believe that Bill C-24 does not go far enough to send a clear, unequivocal message to those who operate in the world of organized crime. We feel that the government should consider a greater disincentive such as reversing the onus of proof so that the accused would have to demonstrate that they are not guilty of the charges that are brought against them. The prosecution will have to prove to the court that the offences have indeed been committed and are obviously related to organized crime. The same reversed onus should apply to the proceeds of crime and, in particular, to the profit of criminal organizations and the assets that are confiscated. It would then be up to the individuals who are charged to prove that the assets are not the proceeds of crime.
As to accessibility of parole, we feel that the proposed amendments are insufficient. In our opinion, no one who is found guilty of an offence related to organized crime should be eligible for parole. We strongly advise against a list that would include certain offences for which police officers would be granted immunity. What we fear is that those involved in organized crime might force infiltration officers to commit one of these offences so as to uncover their identity.
With respect to the resources required to effectively combat the well-funded criminal organizations, we feel that they are clearly insufficient. Last April 20th, we sent a letter to the Right Honourable Jean Chrétien, Prime Minister of Canada, to express our disappointment with the funds that were allocated to fight this type of crime.
No new money has been included in the budget of municipal police services who are part of joint units along with our fellow provincial and federal police officers. You must realize that without additional funding, it is impossible for law enforcement agencies to increase staffing.
In closing, we support most of the Bill C-24 amendments, but we are asking for stricter measures so that we might some day be able to send out a clearer message to those who are involved in this type of crime: zero tolerance.
Mr. Denis Roy, Director, Sûreté municipale, municipalité de Granby: Since I am not as well known as my colleagues in the police environment, please allow me to introduce myself. My name is Denis Roy, Director of Police Services for Granby County, a municipality located south of Montreal.
Previously and for 25 years, I was an officer with the RCMP where I worked in various areas including drug investigations, illegal laboratories, VIP detail, money laundering, and infiltration.
In Granby, I represent the Committee to study organized crime, whose mandate is to inform the federal government of the concerns of various stakeholders. On this committee are Ms Diane St-Jacques, the Member of Parliament for Shefford, the mayors from the riding of Shefford, the reeve of the regional county municipality of Haute-Yamaska and police services from the region.
The organized crime committee was struck following important events related to organized crime activities in our region, particularly those involving members of the Hells Angels and the Evil Ones.
The intimidation and the actions of these individuals who are involved in organized crime had a profound effect on the population, creating a climate of uncertainty as to the capability of police and legal services to ensure public safety and maintain it at an acceptable level.
Some years ago, there was no structured motorcycle gang in the Granby area, but since the Hells Angels changed their structure in Canada, allowing for the creation of farm-clubs such as the Rockers, the Scorpions and the Evil Ones, Granby and the surrounding area have seen an increase in the presence of criminal elements.
The Evil Ones, from time to time accompanied by their big brothers the Hells Angels, have displayed their colours in the streets, the restaurants, and the licensed establishments in order to intimidate the population through their presence and broaden their territory.
The movements of individuals and movements as a group are closely monitored by local police authorities who have undertaken identification operations in the interest of public security. The new criminal bikers have to prove themselves to their sponsors and, to do so, they engage in sensational and intimidating activities to show that they are the masters of their environment. They therefore target strategic individuals in society, such as elected officials, police officers and their families and Crown attorneys. As an example, you must have heard about some recent incidents pertaining to the federal member of Parliament for Saint-Hyacinthe, Mr. Yvan Loubier. Other incidents have occurred in the region, and in Granby in particular. I will describe a few of these incidents to you.
On January 13, 2001, a police officer showed up in the vicinity of a licensed establishment and met an individual who was covered in blood. This person wanted to lay charges against his aggressor, who was a client of the establishment. In the minutes that followed, five police officers entered the establishment where they faced about 30 bikers. These bikers laid down the law in the establishment and forced the police officers back outside.
The bikers had total control of the establishment. They insulted the police officers, shoved them around, levied accusations against them and threatened to kill both them and their families. The man who had previously been assaulted never wanted to lay charges, unfortunately, and that is understandable.
I have personal knowledge of other acts of intimidation against police officers, including the case of a well-known police officer from the Granby Region who was put under surveillance. In this case, it was not the police officer who was keeping the criminals under surveillance, but rather the criminals and bikers who were watching the policeman, at his home. While travelling to work in the morning, the police officer realized that he was being followed by bikers. Over the course of the following weeks, two individuals were stopped in the City of Granby. While searching the two individuals, the police officers found, quite by accident, the licence plate number of the wife of the police officer I referred to previously. We can therefore conclude that it is the bikers who are investigating the police officers. This situation concerns not only the police who work in this sector but also the members of their family.
In another incident, the daughter of a senior police officer, who was a clerk at the Granby Court House, was followed by the bikers. She never knew why she was being followed. Nor she did know, from one moment to the next, from one day or one week to the next, whether some misfortune was going to befall her. Why target innocent people?
In another case, a senior police officer from Sherbrooke was paid a visit by a biker sympathizer who showed up at his residence in the wee hours of the morning. The police officer was on duty and his wife was alone in the house. The biker sympathizer, who was about to break into the residence, saw a light go on inside and did not enter. The police were not able to track down this individual, owing to a lack of evidence.
A few weeks later, the same police officer was sitting in his living room watching television. He saw an infrared light dance on the wall and thought that someone with an infrared weapon was taking aim at him. Later on, we found out that this was a biker sympathizer who had something against this police officer.
In another case, the Hells Angels videotaped my former RCMP colleagues at the Sherbrooke detachment, when they were going about their daily activities. They recorded on video cassette the licence plate number of every police officer and secretary as they went back and forth to their cars parked behind the detachment. In order to do this, the criminals had rented a condominium behind the RCMP detachment, in Sherbrooke, and using this place as a base, they were able to compile a file on the police officers. The video cassette that was used for the bikers' files was found by chance, in Lennoxville, during a police operation conducted at the Hells Angels bunker. Because of a lack of evidence, many of these incidents did not result in legal proceedings.
In the file on the Le Gatsby Bar that I mentioned earlier, where three police officers and their families received direct death threats, the three bikers were charged and taken to provincial court. They were not given prison sentences but fines ranging from $500 to $1,500.
These sentences were like a slap in the face not only to the police officers and their families who were subjected to these situations but also to their entourage and the people working in the local judicial sector. This court decision further strengthened local public opinion that there were different types of justice, one for notorious criminals who got off scot-free and continued doing business, even after being arrested, and another type of justice, that imposed by the criminal bikers on those who may thwart their activities and interests.
These are situations of which I have had personal knowledge, situations that have occurred around me. Some of them have been discovered only by chance. Other equally worrisome situations are occurring elsewhere. You must understand that similar situations are being experienced in all regions of Quebec and elsewhere in the country. For example, there were the bombs that were found close to the Montreal police department stations, but I will not talk anymore about that incident since it did not occur in my territory.
As for our organization and our committee, all of the members of our committee have agreed to meet in order to study what action we can take locally to keep our citizens safe from significant intimidation and disturbance.
You will understand that we have placed a lot of hope in the Standing Senate Committee on Legal and Constitutional Affairs. We are hoping that the amendments to Bill C-24 will convince you of the need to pass this legislation very quickly.
In addition, we would like you to consider, in the bill, provisions to protect people who participate and work in the legal sector against intimidation. We feel that a minimum prison sentence for intimidation would serve as a deterrent.
I believe that my police colleagues are pleased that the maximum prison sentence has been increased to 14 years. This increase reflects the will of Canadians and is in line with the situations we are experiencing. However, we all know that our courts rarely impose the maximum sentence. In order to avoid the situation where court decisions are viewed as being unacceptable, such as the sentences given to the bikers that you referred to earlier, we believe that it would be important for this committee to consider including minimum sentences in the bill. This is the opinion of our committee, of the people we represent and of the people in our community. We believe that this additional measure would ensure that the victims in these cases are given better justice.
We have taken concrete measures. After several meetings, we took the initiative to update a municipal by-law that would enable us to prevent the construction of armoured or fortified buildings, such as bunkers, within a given municipality. If this by-law is given a good reception, it will be available for any Quebec municipality that asks for it.
In conclusion, cases of intimidation and threats against the individuals working in the Canadian justice system, their families and others are increasingly being given short shrift by our courts, as are cases of marijuana growing, which is for the most part controlled by bikers.
The legislator improved the texts of statutes, including that of Bill C-24 that is currently before you, by expanding the maximum and minimum sentences. Would it not be appropriate to provide minimum sentences in order to avoid ridiculous penalties such as fines when lives have been threatened and upset for years? Rest assured that the members of the committee that I represent are pleased to know that major changes have been made to Bill C-24 and that the actions of the committee, such as my appearance before you, will be reported in the medias to inform our citizens about the significant work that you are doing to improve the quality of life of our citizens.
As was said earlier, we are all thoroughly convinced that the amendments contained in this bill are necessary and should be considered as a priority, so that they can be adopted as quickly as possible, thereby protecting the public from a real threat that is taking on alarming proportions. On behalf of my colleagues on the committee that is focusing on organized crime in the greater Granby region and the citizens of the Shefford electoral district, I thank you for your time.
[English]
The Chairman: Before going to questions, I would like to point out that the next piece of legislation that will come before this committee is Bill C-15A, which has an anti-stalking portion in it as well. It might be something that would interest you.
Senator Beaudoin: I would like to come back to clause 11 of Bill C-24 because it is a new power or new infraction. I understand that, because of the Campbell case, you consider that this bill enables the police to do something that you would not be able to do under common law. Understanding that with this bill there is an authorization to do something of that sort, what is your reaction? There is an expression there, "without lawful authority." If there is conduct that is intended to provoke a state of fear, this act is forbidden in clause 11, but I understand that the police officer would benefit from immunity with this act. What do you think about that power?
The Chairman: I suggest to senators that they direct their questions to one particular witness.
Senator Beaudoin: Perhaps the chief of the RCMP could answer.
Mr. Zaccardelli: I am trying to find the clause and read it, because I am not certain.
Senator Cools: It is on page 18 of the bill, clause 11.
Senator Beaudoin: There are two parts. The intent to provoke a state of fear is forbidden. However, it says "without lawful authority." What is lawful authority for you?
Mr. Fantino: If I read the section correctly, this is intended to protect the police and other officials. It is not perceived to be a tool by which we can then create a situation of intimidation, which would be clearly inappropriate.
Senator Beaudoin: Who would authorize?
Mr. Fantino: Can I come to that in a second? That particular section does not go far enough. What is presently proposed does not extend to members of a provincial legislature or their families, for instance. Those people are involved in the administration of justice and their attempts to close down a fortified biker clubhouse. The offence as presently drafted will not capture a variety of things that I believe it should. As well, there are the issues of posting undercover officers' pictures on Web sites and protection for municipal officials and their families working on organized crime issues at the local level.
The Chairman: Chief Fantino, before going further, by an amendment in the other place, a member of a legislative assembly or municipal council were added, so they are in the bill.
Senator Beaudoin: At the House of Commons?
The Chairman: At the House of Commons. Now it is a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.
Mr. Fantino: I am glad our pleadings were heard. Thank you.
Senator Beaudoin: Is that what you suggested?
Mr. Fantino: It is exactly that, honourable senators. We felt we needed to embrace protection for greater numbers of people involved in the administration of justice who run the risk of being intimidated and otherwise threatened.
Senator Beaudoin: That part of the section is clear. The meaning is clear. What are not very clear are the words "without lawful authority." I would like to know what the police forces consider a lawful authority.
Mr. Niebudek: Senator Beaudoin, I am happy we are talking about clause 11, because proposed section 423.1 of the Criminal Code is extremely important, especially for the front-line police officers.
The court would definitely decide the lawful authority. The court will have the responsibility to decide if the lawful authority was there to do any of these offences.
Chief Fantino mentioned that we feel that it should go further as well. For example, we talked about web sites. We know in Ontario there are Web sites operated by motorcycle gangs which have sections called "know your cops" with photographs of police officers that were taken without them knowing and without their authorization. They are asking the general public, and I will suggest that the general public of these Web sites are criminal elements, to publicly identify police officers and their residences. We know that certain groups have forms with them, and a member of the group will fill out that form when he is intercepted by a police officer with any names of dependents, children, husband, wives, address. For $10 in this province you can obtain all the residences of a police officer through the legal titles bureau registration. These are things that are putting the men and women on the front line in danger because we know, and Mr. Roy alluded to a few of those examples, that they are intimidating us. They even were successful in intimidating members of Parliament, members of certain provincial legislatures, the National Assembly of Quebec. Yes, intimidation is extremely important.
Mr. Zaccardelli: The senator has raised a very good question. I think we are going around in circles, because no one will have authority to do this, so maybe this is something we want to look at in terms of changing it. I cannot imagine a situation where anyone would get authority to do this intimidation or whatever. I do not know why it is written that way, because I cannot think of a situation where someone would get authority to do this type of thing.
Senator Beaudoin: This is exactly my point. I cannot see how you could obtain authority to do this.
Mr. Zaccardelli: I do not think it would be us, obviously.
Senator Cools: It is to protect them, in case someone tries to charge them with intimidating and provoking. My reading of that could be wrong because we are early in the study of the bill, but as I read it, it is to protect them from someone else accusing the police of trying to do damage or hurt someone.
Senator Beaudoin: If it means that, and that is a possibility, I think it should be stated clearly.
Mr. Westwick: It was pointed out to me that section 423(1), which is the existing section in the Criminal Code, uses very similar language. I am unable to add anything to what the commissioner has said as to what use the language could be in the existing Criminal Code, but the language that is found in Bill C-24 in this clause seems to repeat the language used in section 423 of the code already.
Senator Beaudoin: It repeats something that is not clear.
Mr. Westwick: It is wrong.
The Chairman: The Criminal Code says:
Every one who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he has a lawful right to do ...
The term "without lawful authority" is already in section 423(1) of the Criminal Code. This first clause merely repeats what is already there.
Senator Beaudoin: I will address that to the officials when they come before us.
The Chairman: This is a drafting question.
Senator Beaudoin: It is not clear.
[Translation]
Senator Rivest: Mr. Roy's words have shown in a remarkable way the public's stake in the legislation. In the Saint-Hyacinthe area, which I am familiar with, where many corn fields have been turned into fields of marijuana, some members of Parliament, whom Ms Diane St-Jacques knows well, have been subjected to intimidation.
My questions are of a technical nature. First of all, the bill lists certain crimes that police officers will not be able to commit in the proper conduct of their investigation. This is quite understandable. However, in practice, could criminal organizations require that all members of their association commit these crimes, as a way of detecting people who might try to infiltrate their organization?
My second question concerns the legal crimes that allow police officers to ensure their investigations are effective.
I imagine that you have looked very carefully at what is accepted. Did you consult with police associations to make sure that the elements mentioned do not reduce the effectiveness of undercover work? When you are in an undercover position, you do not have time to grab your cell phone and call your boss at the RCMP to ask the question: "They want me to do such-and-such, what do I say?" Police officers must act quickly. How will they behave if they are asked to commit a crime that is not authorized? Is that what you were trying to point out, Mr. Prud'homme?
Mr. Prud'homme: I know that this may seem very disturbing for people who do not perform police duties. It is nothing new. Moreover, when the representative from the Montreal Urban Community Police Service testified, he made this very clear. It is since the decision handed down in the Campbell and Shirose decision, because the MUCPS has been using these techniques to infiltrate gangs for many years. We have guidelines, a disciplinary code and an ethical code. I can tell you that the MUCPS even qualified the introduction of these elements as a kind of insult to police officers in Quebec and Canada.
We have never committed, and we will never permit ourselves to commit crimes such as sexual abuse, murders and so on. We have been using our methods for years. How can we draw up an exhaustive or a not-so-exhaustive list? We would just be sending a message to criminal gangs to set a test to detect our mole, our undercover officer. So, once again, we will have our hands tied to a certain point, unless we develop other techniques. In the end, this can backfire against the police. The decision said that Parliament was to adopt legislation that would allow us to do certain things, as long as we have a measure of control over the organizations. In our opinion, the effect of this provision would be automatically undone if the acts or actions were listed.
Senator Rivest: It could be extremely dangerous for police officers.
Mr. Prud'homme: Remember what Mr. Auger told you. It is practically impossible to apply. In any event, it is a question of proof. There is someone who will evaluate it.
Mr. Zaccardelli: We should not forget that we faced the same kind of challenge before the Campbell and Shirose decision. Our agents had to undergo the same kind of test when they were attempting to infiltrate. The legislation will allow us to offer to buy or sell illegal drugs.
The year before the Campbell and Shirose decision, in 1998-99, we used undercover agents in 59 major operations in Ontario and in Quebec. After the decision, we had two operations where our undercover agent had to act in a passive way, without being able to make an offer to purchase. Think of the situation that existed during the smuggling crisis. Of course, the legislation has changed, taxes were cut and our massive efforts calmed the people down. However, how can we go ahead without this capacity? And I am not only speaking about tobacco and alcohol.
For us, this is not a right to commit sexual crimes or abuse. That will never happen. This kind of abuse is out of the question. It is simply the right to make an offer. How can we know if an organization is involved in smuggling? That is what we want to know. The court said, "You have the right to do so, but the Parliament must have its say."
Mr. Roy: As my colleagues explained, it is inconceivable for a policeman to think of committing a crime against persons, be it sexual abuse, attempted murder or attempted injury. We are all professionals. No police force - even if there were no legislation in Canada - would accept that one of its officers commit an act against a person. I am talking about bodily harm, and other damage.
Senator Rivest: That makes sense.
Senator Joyal: Mr. Zaccardelli, your statements have to do with the very foundation of this bill, the principle of the rule of law which raises the issue of the control that must be exercised over police forces when they are engaged in what we call undercover operations, or while they are carrying out an investigation. Clause 25 does not limit these powers only to undercover operations.
[English]
As I read 25, it covers the whole of the investigation of the police authority, be it undercover or in the course of. We agree on this, because many of the examples that have been given to us relate to undercover activities and we do not dispute that.
When the Supreme Court, in Campbell, said that Parliament must legislate, that did not mean that from then on there is authorization and that these acts are lawful under certain circumstances. In previous judgments, the court has been explicit in regard to elements that should exist, and when the principles of the rule of law must be followed, when the police seek to go beyond what is the law of the land.
I wish to refer you to the famous case of Southam where Justice Dickson established that there are three components to establish a system that is balanced, or a system where there is a good check and balance. The check is someone must monitor and the balance is the idea of proportionality. When we say that something is in balance, it is because, everything being equal, it seems to be the right thing to do. The court was clear that there should be an assessment made in a neutral and impartial manner. The court has been quite clear. It states at page 10 that there should be an assessment made in a neutral and impartial manner.
I agree that, for undercover operations in the course of certain investigations, there should be some authorization to do acts that otherwise would be criminal. How do we maintain the check on undercover activities after the fact? During an operation, an officer cannot call and ask for authorization. That would be ludicrous, but that is not what we are asking. Who monitors ex post facto those initiatives? Even if an investigation does not involve undercover operations, where are the neutral and impartial assessments of the authorization?
You can delegate your authorization to another officer who delegates it to another one. That officer may asks an ordinary citizen to do the offence. That information remains within the police. All the commissions that have investigated police wrongdoing, such as Macdonald and Poitras, have maintained the principle of civil control, which means by a body other than the police.
In the Mentuk decision rendered last week, the Supreme Court clearly restated these principles.
[Translation]
I am reading the passage on page 19, from the decision of the Court of Queen's Bench of Manitoba, the R. V. Mentuck decision:
A fundamental belief pervades our political and legal system that the police should remain under civilian control and supervision [...]
[English]
That means an external element must overlook the police, especially in situations where the police have authorized actions covered by criminal or other important federal statutes. My preoccupation is not the authorization; I think you should have that authorization. I want to know how we uphold the principle of neutrality and impartiality from an external civil body.
You need to be protected so that the public can always maintain its trust in you. You are the ultimate level of security in this land, aside from the army. We must maintain trust in our system of law and order, which you represent, in such a way that the average citizen believes the police are not more criminal than the average person that they are arresting. At the same time, the police are protected from false perceptions of wrongdoings. You have said that you maintain the principle of the rule of law, but we are all human and sometimes we make bad judgments or we have bad motivations that lead to multi-year investigations that can undo the balance we strive to achieve.
I listened very carefully as you and Chief Fantino addressed this issue. However, I still question the operation of clause 25 and that clause 25 contains no formally defined code of practice or the authority to adopt a code of practice that could act as a guideline to the use of that special and exorbitant power.
Mr. Zaccardelli: You articulated some excellent points. I appreciate your comments because they contain, in part, the answers to our dilemma.
You referred to Southam, to Campbell and Shirose and to Mentuk. Let us take those cases to see how the system works, senator. What did we do after Southam? When the Supreme Court in Southam said that a search warrant must be authorized by an independent body, being the court, what did we do in this country? Every law enforcement agency immediately complied with that. That is what we did.
I just gave you the reference. What did we do after Campbell and Shirose? When the Supreme Court pronounced itself, we stopped operations. Since Mentuk I have issued directives to respond to that case.
That is one of the critical safety valves in our system. In our country where the rule of law is supreme all the time, law enforcement agencies take guidance from the highest court and they follow the decisions to the letter of the law, to our own detriment at times. It is difficult for us to resist undertaking those operations that we know can address ongoing criminal activity. However, we cannot undertake certain undercover operations because it is more important to respect the rule of law and the Supreme Court decisions, than to go about and catch those few criminals. We are watching them get away.
That is one of the critical balances and checks in our system. That is the greatest check of the system and the courts themselves. I am not an elected official. I answer to my minister. I am accountable at all times to him and, through him, to Parliament. We have these various review bodies that exist. I am a review body as the commissioner. I have an onerous responsibility to ensure compliance by the men and women under my command, as do the other chiefs in their commands. We do make mistakes sometimes but we are more severe on ourselves than on any other profession that I know in terms of how they regulate their members.
The minister, the elected official, under my recommendation, will make that designation. I will report. Law requires me, where any damage takes place, to notify the minister. There are checks and balances in the system.
The reality of operations is that certain key people who will do this work can be identified in advance, but it is the nature of our work that an agent or an investigator must at times act without foresight. Those actions will be judged very severely in hindsight. We try to ensure that those actions are always in conformity with the law. If they are not, there is automatic review. The media is there. The external review committees are there. The public scrutiny is there. The courts are there. Those are the checks and balances that we have in place.
You are describing a requirement of another approval level before someone can act, above the senior police officer or the person specifically designated by the Solicitor General or their counterparts in the provinces. Such a requirement would render impossible our ability to work. That is the challenge we have.
I grant that there must exist a certain amount of trust that the police will do the right thing most of the time. I wish could guarantee you that it would be 100 per cent of the time, but I know that there will be situations where we will make mistakes. Then we will come quickly under the spotlight. The various levels of the courts will come upon us and give us direction and guidance. Southam did not say we were wrong; it just said that, under the Charter, in our society, this must be done and we corrected our policy. Mentuk did that, too. That case took a strip off of us and I accept that. I did not feel good that day when the Supreme Court ruled, but I accept that 100 per cent. Now we are looking at ways to still solve very complex and difficult murder cases while still respecting the law.
There is a certain amount of trust built into the system, but that is our system.
If we were to impose another level and be required to get authority from some independent body, it would make us absolutely and totally ineffective. I share your concerns. It really bothers me that there are people out there who believe or have a perception that the police only want to disrespect or commit criminal acts. You are not saying that at all, senator, and I do not want you to get me wrong, but I believe there is a good balance in this law. It restores equilibrium. It gives us certain tools with some very strict restrictions.
My position was why do I need to have the minister approve these? I am the commissioner. If you do not trust me, get another commissioner. That is what I actually said at the time. I think I am an honourable person, but I accept the fact that the elected official has to be involved in the process. I understand this dilemma or issue, but I also believe this law strikes that balance and comes very close. There are all kinds of review bodies and external mechanisms that will come down on us so fast it will make our heads spin. In balance, I think it is a good law.
Mr. Niebudek: In answer to Senator Joyal's concerns, I would add that we already have civilian oversight. We have civilian police services boards in this country that investigate and oversee and monitor municipal police forces. The special investigation unit does the same thing in the Province of Ontario. Perhaps Chief Fantino will talk about this. We have public complaints commissions for the RCMP, for example. The Solicitor General, who is an elected official, reviews our actions. We are open to criminal prosecutions. We are open to civil litigation as well. The Criminal Code even gives police officers the justifiable authority to use lethal force.
That is not what we are talking about here. We are talking about organized police undercover operations that have passed through many front-end checks and balances. I would suggest that perhaps the members of this committee get in touch with your police forces and go and see what those checks and balances are, because obviously some of those are extremely sensitive and we cannot discuss them here. You would be surprised at the layers of authorities and permissions that we need to conduct a small undercover operation.
I agree with you. It should be there, and it is there. Outside monitoring is extremely important in our profession, and it exists.
Mr. Westwick: To the comments of Commissioner Zaccardelli, I say, "Hear, hear." I defer to Chief Fantino.
Mr. Fantino: One other case that should not escape the attention of this honourable body is the Feeney case. Mr. Justice Sopinka ruled and caught us by surprise. There was no process in place to interpret his ruling and we ceased doing those types of warrants. We worked with the members of the judiciary on getting advice and interpreting that. The justice system kicked in. We sorted that out. We did not just say, "To heck with it, we are off and running anyway." We were faced with a proposition where we did not even have a way of responding to this. There were no such documents and no such provisions in law. We just stopped doing it until this issue was sorted out. That shows a tremendous amount of integrity and responsibility and due diligence that we bring to the job or the task at hand, and we do not take that lightly.
I wanted to quickly give you an overview of where the accountability lies in my world. First and foremost, we develop very intimate internal policies followed by audits, inspections, standards and benchmarks about everything we do. All of these things are documented. There are accountability mechanisms by which we operate. There are various and many levels of supervision, up to and including in my case, the chief of police, the most vulnerable person in a police department and the most accountable person in a police department. We have my civilian body, my employer, who is the Police Services Board, made up of local political people and citizens at large from the community to whom I answer about everything that happens in the police service.
There are various entities within our provincial government. The Solicitor General governs the whole operation of policing and policy, and there are checks and balances including inquiries that can be held and investigations done with respect to alleged inappropriate conduct on the part of a police service. All of our stuff is vetted through the various prosecution entities, federal or provincial, and the various levels of our courts and the judicial system, including Crowns, judges and defence counsel. Everything we do goes under the microscope. There is no escape from accountability. We accept that. It is part of our mandate. It is part of the job. There is also the media, the public as a whole, and our political leaders and policy makers. We are accountable to you folks as well.
We should not forget about a police officer's own integrity and that for every step of the way where there is an abuse of power and authority, there are some very serious sanctions provided in the system. If you trust us to carry guns and use deadly force in the lawful execution of our duty, protecting citizens and ourselves, you have to trust us and give us this one more tool to enable our people to do their jobs in an environment where we stand half a chance of meeting the challenges we face with organized crime. We do not want to enumerate those, because I am sure you are well educated on that, but we also need to have some protection for our people, and this legislation does that.
Finally, the legislation as proposed has some very clear dimensions. The bright line is there. You will not do certain things. There is not an aura of freewheeling interpretation here. The checks and balances are there. I can tell you honestly that, in my case, I would take personal involvement in any of these authorization were they to happen in my world.
[Translation]
Mr. Prud'homme: My answer is that we are not perfect and we will never be perfect. As long as men and women are wearing the uniform, errors can happen. However, if this act is not passed by Parliament, you will have ask the following question: Who will maintain these checks and balances?
These criminal gangs have no codes of ethics or professional ethics. They have no civil surveillance commissioned to manage and control them. They have no scruples. However, we do have these controls. We wear a firearm on our belt. We protect our fellow citizens. If it is so good to live in Canada, it is not by chance. As Mr. Auger said, let us look at what the United States did to regain control over these groups. I might seem like an extremist, but we thought of asking you to suspend some provisions of the famous Charter. As a society, we might even be reduced to that if we do not intervene right away.
Senator Robichaud: To follow up on what Mr. Prud'homme was saying, organized crime is a threat. We often hear about the magnitude of this threat. I do not know how we could put numbers on it, in terms of the extra work it creates for you or the costs for society in general. Then we come to Bill C-24, which you are encouraging us to pass as soon as possible.
I realize that you probably do not have any figures, but it would be good for us to obtain some at a later date, so we can use them. What impact would Bill C-24 have on this very real threat?
[English]
Mr. Fantino: Some of the information we have is captured in many studies that have been done with regard to the impact of organized crime in our society. However, much of what is done within organized crime actually filters down to the lifeline of our communities and citizens. Very often the most vulnerable people are targeted as commodities.
One need only look at drug-infested neighbourhoods and the associated crimes to realize how life is sucked out of communities. The food chain of events within these communities goes all the way to organized crime. Every piece of crack cocaine that hits our neighbourhoods and targets the most vulnerable and disenfranchised citizens in our country has that direct link. The ancillary crime we experience in our communities is driven by organized crime. I am not providing anecdotal evidence; this is a reality. We arrest drug dealers. We see the gunfights, the gunplay and the gang fights for territory at the local level. Much of that plays out in a violent way in neighbourhoods and communities.
I appreciate the opportunity to make this point. I cannot provide honourable senators with a dollar figure, but I can tell you that the lifeline of our communities and neighbourhoods, especially the vulnerable people in our neighbourhoods, is directly linked to the activities of organized crime.
We also know about the financial impact to our country. Organized crime hits all of our pockets. Much of the surcharge on credit cards goes to pay for goods stolen by organized gangs of shoplifters who do nothing but target retailers. We bear that cost.
We can try to talk about dollar figures, but I am more interested in putting before honourable senators the real face of organized crime. The real face of organized crime is the disenfranchising of communities and the victimizing of vulnerable people at the level of the streets in the neighbourhoods of our communities in this country.
[Translation]
Mr. Zaccardelli: I do not want to repeat what Mr. Fantino has already said, but I would just like to point out that this is an area where it is very difficult to get accurate figures. It is important to compare Canada with several other countries in the world. This comparison gives us an indication of the impact of organized crime. For example, after the wall came down in Eastern Europe, which organizations were the first to move in and take control? Well, it was not politicians or elected officials, but rather organized crime which took control of industry and part of their country. If you look at the world, Canada is in a genuinely privileged position, insofar as we do not have the corruption or organized crime that exists almost everywhere in the world.
Can we continue to feel as safe as we do now? Are we in a position as a country to be able to more or less guarantee a society in which organized crime is controlled? This is a challenge and one of great concern to me.
I lose a lot of sleep over this issue, because in my capacity as head of the RCMP, I am responsible for addressing organized crime. Why do we always think that we can keep organized crime out of Canada? What makes us think that while the rest of the world is corrupt and undemocratic, that we in Canada can safeguard our special situation in this world? This idea worries me. It is incredible to see the threat posed by organized crime and the way in which organized crime has taken advantage of globalization and made technology work for it.
Over my 10- or 15-year career, I have been able to see the scale of organized crime, and today I am seeing newer organizations which did not exist five years ago. These organizations originate in almost all parts of the world. Every time there is a crisis situation in one part of the world, we see one more criminal organization setting up in Canada to take advantage of our democracy and the assets that we have here. This is the real threat.
You are quite right, we do not have the figures on exactly how many organizations are operating here, but we are seeing them in the streets, not only in Toronto, but also in places like Chicoutimi and in the Far North. In the Far North, bikers have a drug distribution system which tops any other system elsewhere in the world. They can deliver 10 kilograms of cocaine a week to Iqaluit. It is incredible what they can do. They have the best distribution network in the world. It is even better than those of private organizations. Incredible as it might seem it does exist! Can we quantify this phenomenon? Not really, but we have seen it and Canadians are experiencing it.
Mr. Niebudek: It goes without saying that it is difficult to get figures on this phenomenon. It is difficult to put an exact figure to crimes committed by organizations, targeted by this bill. Nevertheless, some figures do come to mind. For example, 150 represents the number of murders in Quebec directly linked to criminal biker gangs over the past 10 years. The figure 11 was the age of the Desroches lad when he was killed by a piece of shrapnel from an exploding car. These two figures alone are sufficient justification for the legislation demanded by the Supreme Court to eradicate this scourge.
[English]
Mr. Roy: Having been a field officer myself, working under the orders of the RCMP, I conducted a study in the Sherbrooke area, in the Eastern Townships of Quebec, concerning marijuana growers based on the activity of one hydroponics store. I added up a few numbers and was extremely conservative. This store sold hydroponics material not to everyone, only to the drug dealers. That store had numbers in the hundreds of thousands of dollars. That was one store's business and does not take into account what the marijuana would have been worth after having been grown and sold on the street. That is just one store that was under surveillance for a few months in a year.
[Translation]
As for marijuana sales, we are not talking about hundreds of thousands of dollars or even millions of dollars, but rather billions of dollars. This is a very conservative estimate and only illustrates the scale of the problem for one specific operation and region. The actual figures are through the roof. The number of zeros would take up more than one page.
Senator Robichaud: What effect will Bill C-24 have on organized crime's activities? You say we thought we were shielded against this threat, but I think people realize, in the wake of a number of events like the ones you mentioned, that organized crime is well established and well structured and poses a real threat.
Mr. Prud'homme: As soon as criminal gangs saw anti-gang legislation potentially coming, they began closing down bunkers. The difference can already be seen. Mr. Auger said so and I am telling you; these gangs are no longer conspicuous, and that in itself is a significant effect. For years, we have been asking for anti-gang legislation to enable us to deal with criminal organizations like those operating in the United States. If the bill were not passed, think what message that would send to those groups.
The public is fed up. Polls conducted by the media, among others, show that for months and months, people have been calling for anti-gang legislation to be passed without fail in order to take action against criminal organizations and the individuals involved in them. The notorious ringleaders are disappearing into the woodwork or leaving town. The future will confirm that this tool is essential.
Senator Gill: Clearly, policing and the legislation have to be improved. While we wish to combat organized crime, it is naturally not to be found in our own backyard. These organizations attempt to infiltrate very vulnerable Indian reserves in remote areas or vulnerable groups in ghettos in the city, for example.
The unemployment rate in remote areas is very high. Band chiefs from the Saint-Maurice and North Shore regions have told me that criminal gangs have already infiltrated their territory and that they have no way of combatting them.
The chiefs explained the situation at a meeting with the Solicitor General. There is absolutely nothing they can do about the situation. When I was young, we were afraid of the RCMP; now, the reverse is true, and we are afraid of organized crime.
Mr. Prud'homme: You are right, and I am going to give you a concrete example of what I have experienced. The Sherbrooke Hells Angels based a biker in Iqaluit to sell hashish from Sherbrooke. Similar examples are to be found around the world.
A police money-laundering operation in Montreal from 1990 to 1994 revealed that the Sherbrooke Hells Angels' cocaine came through the Hells Angels international group and that the work was being done in co-operation with the Montreal mafia. The Colombians were in cahoots with the Hells Angels for the sake of exporting the cocaine. This is a problem that has to be dealt with on a worldwide basis. This is a difficult problem to deal with in the big cities; imagine what it is like for small towns in remote areas.
In greater Granby, with a population of about 60,000 people, the police are under surveillance. Files are kept on them. Officers are even visited at home. Organized crime is taking action against officers. No longer is the police officer investigating the criminal; the criminal is investigating the officer. In a municipality of 200 or 300 residents, there are surely members of organized crime.
Mr. Prud'homme: Some North Shore municipalities have recently joined the Police Federation. I am aware of the difficulties they face in performing their duties. This situation is unfamiliar to us on the municipal scene, but more and more contacts are being established. On one of my visits, my members told me that bikers and criminal gangs were very active in Fermont. However, it takes a long time to get there. We should have contacts with the band councils. I just recently met with representatives of the ministère de la Sécurité publique to discuss these problems. There are other players involved, including the band councils and the governments of Quebec and Canada.
All this to say that we are aware of this. They are already members and so we are concerned about their quality of life, but we are also concerned about the tools they need in this very unique environment.
Mr. Niebudek: This is a very important matter, and in addition, it is also a question of human resources, namely, how many police officers are available to do this work properly so as to resolve the problem.
As Mr. Prud'homme said, we are obviously not trying to get criminal organizations to change locations, rather, we are trying to eliminate them and put the leaders behind bars, these leaders who are making money by selling quarter grams of cocaine or a gram of hashish in Iqaluit, for instance.
We at the Canadian Police Association, which also represents Aboriginal police officers throughout Canada, are aware of the problems that exist in certain communities, within the tribal governments themselves.
Bill C-24 will help us tremendously in our fight against organized crime. And this will be used in conjunction with other solutions, we will continue providing preventive policing and we will work with our partners at the national, international or provincial levels. We must reaffirm our relationships with regional police departments, as well as with national police forces and government agencies responsible for monitoring immigration and customs. In this manner, we will be able to extend our reach, just as organized crime has done.
Senator Gill: I am pleased that a relationship has been established and that there are certain parameters. You are no doubt aware of the fact that Aboriginal communities are trying to take charge of themselves. This factor must be borne in mind. Just because we have a problem somewhere does not mean that we should withdraw the local police forces and send in the Sûreté du Québec. This is a very important aspect.
[English]
Senator Cools: Someone has taken a lot of time to draft these provisions to be able to deliver what they are trying to deliver without sounding as though somehow the police officers are beyond the law. I am sure you all know I had objected to what the courts did in R v. Feeney, but that is another story.
My concern is that this bill does for the police what you want it to do and that it does actually provide the protections that you are seeking without creating another host of problems for another court judgment to strike down something else and you are no further ahead.
I have been examining the clauses. I notice that clause 2 of the bill as it stands, on page 4, to amend section 25 of the act, says:
It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.
The words "justification" and "justify" seem to be recurring if you go forward and read the following sections.
Someone is trying to balance the phenomenon of authorizing the power to commit crime and to grant an immunity from liability or prosecution of policemen performing services to the community. It is drafted in a rather interesting way, but someone obviously was trying to give these questions some consideration. It is immunity. You are not being given a power to be vagabonds. You are not being given an authority to be criminals. It is a type of Crown immunity. Sometimes it is better for the law to have stayed as it was, and to develop Crown immunity rather than to have gone this way, because to put these concepts into statute is not a simple matter.
Chief Fantino, you said that in terms of granting authorities, you would make sure that you were personally involved in granting and signing those authorizations. Some of you are very senior policemen. We have the RCMP here, very senior. As the bill would be passed and would go into the general framework of the administration of justice, how would that authority be granted? For example, for the RCMP chief, would he personally ensure he was personally involved in that authority? I am asking you to speculate or guess for other people who are not here, but based on your knowledge of police departments and forces across the nation, and you have substantial knowledge, how do you think that would operate?
Mr. Fantino: In investigations of this nature, where this type of issue is or would be in play, I certainly would be the final signing authority and therefore would be accountable. The reason for that is very simple. It is just like going into a hardware store and behind the glass under lock there are certain very expensive tools, but nonetheless those tools are necessary to do a certain job. Normally, a customer coming into that store could not access those tools. They have to go to someone in authority who will then open up the case and allow access to those tools. Forgive me for being simplistic, but I see that as a very similar onerous responsibility that I would have.
I am totally and absolutely accountable for the actions of all my people. If we are going to be involved in these kinds of investigations at this very high level, with all of these potential pitfalls, then I feel that I have a duty to self-preserve and be absolutely accountable to the public. If we lose the public trust, then everything is lost anyway.
Senator Cools: You are saying that you would keep a very close eye and hand on that; is that correct?
Mr. Fantino: I would be the authority to give the beginning and monitor this particular investigation, were it to involve these kinds of issues.
Mr. Zaccardelli: The law will require me as the commissioner to identify and recommend to Mr. MacAulay, the Solicitor General, as the competent authority, the people whom he will designate. Those people will then be designated. The minister has the final say. In practical terms, I will assign senior officers in the various regions to review the members who are designated. When those members are to be engaged in any particular investigation, they will be authorized by and will report to a senior officer in their region. The reports will come back through me to the minister.
Mr. Westwick: Dealing with the authorization, I checked with my own chief earlier, Chief Bevan of Ottawa, and he said exactly the same thing as Chief Fantino. More importantly, the Association of Chiefs of Police would welcome the opportunity, in conjunction with the RCMP, the CPA and the Department of Justice, to work toward establishing a protocol and training standards across the country. All the police chiefs could then exercise this kind of power based on the same principles. Departments that do not have the same resources as Toronto and the RCMP could benefit from those perspectives.
You talked about immunity for the commission of crimes. Under Bill C-24, police officers do not want to think they are committing crimes. They do not want to think they are getting some kind of immunity. As the chief and the commissioner have outlined in detail, there are accountability provisions set out here.
The general principles in clause 2 and later in clause 89, both of which you quoted, characterize these actions as being justified as part of an officer's duties. This is not merely wording. It is a significant difference in notion in which we strongly believe. We also believe that our colleagues at the Department of Justice heard us on that point in the consultations. We made the point with great passion because of its critical importance to the whole notion and underpinning of this law.
Senator Cools: Someone has paid a lot of attention, in the scripting and drafting of these sections, to canvass those three points that I made so that it does not read as though policemen are exempt from the law nor above the law somehow.
I understand that. However, the whole intention is an exemption that is supposed to protect you so that you can do the work that you must do. That is just the nature of the universe.
The previous witness, Mr. Nicaso, said that we cannot win against organized crime. If we believed that, we should all go home. We may need to do a lot of retooling, particularly in how we see the fighting of crime. We must put our best efforts forward. The intention here is to protect the police without in any way removing any protection from a citizen. There must be a way to balance these interests.
I listened to you carefully. I was able to read between the lines and to see the shoals that were being navigated. This is but one aspect of the operations and the implementation of this bill. I am not saying we should monitor it, but we should perhaps look at it again at some time to see how this so-called extraordinary power is being implemented. These activities have been going on for generations. Let us not kid ourselves. I have read many police reports, many secret reports, over the years.
This could be an interesting area of study, especially if the protocol and the set of ethical considerations are developed.
The Chairman: Senator Cools, since there will be a three-year study, we will undoubtedly have the issue before us again to see how things are actually operating.
Senator Cools: I am volunteering myself.
The Chairman: Thank you, gentlemen, for coming.
The committee adjourned.