JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 8, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 13th meeting of the Standing Committee on Justice and Human Rights. Today we're hearing witnesses on Bill C-24, an act to amend the Criminal Code and to make consequential amendments to other acts.

As witnesses this afternoon we have the Organized Crime Agency of British Columbia, represented by Dave Douglas and Mike Ryan, the Canadian Police Association, represented by Mike Niebudek and Yves Prud'homme, and the Canadian Bar Association, represented by Joan Bercovich and Greg DelBigio.

Has any discussion taken place as to the order of presentation? If not, we'll go by the order in which they're presented here on our agenda.

The rules here are that we'd like each group to stay inside ten minutes with its presentation. Then we will go to questions from the members of the committee. We are aware of the fact there could be a bell around 5.15 for 5.30, I understand, so I would ask everybody to keep that in mind.

On that note, I turn to the Organized Crime Agency of British Columbia, Messrs. Douglas and Ryan. Thank you.

Mr. Dave Douglas (Chief Officer, Organized Crime Agency of British Columbia): Thank you, Mr. Chairman.

It's a joint presentation this afternoon. I'm going to make some opening remarks concerning the organized crime situation in British Columbia. Then Inspector Ryan from our proceeds of crime unit is going to talk specifically about Bill C-24. His speaking notes are available to this committee, and a copy has been given to the clerk.

In British Columbia, it's safe to say, the face of organized crime has changed a great deal in the past five years. British Columbia, like the rest of the country and the law enforcement agencies around this country, faces unprecedented challenges.

Globalization is a factor. When we look at the map of the world, we see borders, but when organized crime looks at that same map, they see no borders, no jurisdictional boundaries, just a seamless capability for criminal activity. This has created a tremendous international movement of criminals and related commodities, especially in British Columbia, where the geography of organized crime kicks in with seaports, airports, extended border and coastline.

We're faced with the challenges of what we call the fusion of these criminal groups. Organized crime groups now are run like corporations, because they see the benefits of cooperation. They've developed non-traditional alliances, and the turf wars of the past that caused internal disruption are gone. They're now pooling their resources for a common criminal purpose. These groups have become very entrepreneurial and are involved in multi-commodity criminal activity, which crosses over traditional law enforcement stovepipes, such as drugs, customs, and immigration.

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We're faced with the challenges of the new technological age. The technology that fuels legitimate activity also fuels criminal enterprise. A wide variety of transnational organized crime groups are heavily involved in cyber-crime. Russian organized crime recently attempted a cyber break-in of Citibank in an effort to steal $10 million, and we see traditional Italian organized crime moving toward online Internet gambling. They see it as an emerging trend. They've done the risk assessment, and it involves less risk than drug trafficking.

We're faced with the challenge that our police cellphones and pagers are monitored and intercepted by scanners and computers. The Hell's Angels are using the Internet to send encrypted messages between chapters. Proceeds of crime are used to finance legitimate companies, which creates unfair competition. In the Haney chapter of the Hell's Angels you'll find 32 legitimate online trading businesses.

So what does this mean for us in law enforcement? In B.C. all of our investigations go international immediately.

We are now faced with the aspect of Asian organized crime, which is laundering in excess of $1 million a day in British Columbia. The moneys are being sent offshore to be reinvested in real estate and businesses in China and Vietnam. These businesses are sold off, and the money is reinvested into illegitimate and legitimate businesses here in Canada.

The solution to organized crime, as I've said before, lies in the political will, funding, and police leadership. From my perspective I've seen that political will evolve over the last year or so. With police leadership we are beginning to mirror organized crime, developing local, national, and international partnerships; allocating our scarce human, fiscal, and material resources to our priorities; pooling our expertise; utilizing geography and technology to our own advantage; and being innovative in the process.

In the area of funding, I think the government has to be innovative. The government has to recognize the contribution of other provincial police agencies in this country besides the RCMP. The Organized Crime Agency of British Columbia, like other provincial police agencies, has a mandate to fight organized crime nationally and internationally.

In reality police agencies such as ourselves can only expend approximately 8% to 10% of our existing police budgets on actual front-line policing projects to address the organized crime situation in Canada. We need a mechanism whereby we can come to the federal government to obtain funding for specific projects that have a national interest, such as the Hell's Angels or Asian organized crime. Right now that mechanism is not in place. I'm certainly not afraid of reaching any benchmark of accountability that would be placed on such funding.

With our current operational model, I'm confident that we will succeed in having the necessary impact on organized crime.

Inspector Mike Ryan (Proceeds of Crime Division, Organized Crime Agency of British Columbia): Thank you, Mr. Chairman.

I'll be reading from a prepared text, which Chief Douglas indicated had been handed out earlier. British Columbia has always placed a priority on attacking the financial basis of organized crime and offences committed to benefit criminal organizations. That must continue to be a priority in order to effectively stop criminal activity. To accomplish this it is paramount that some of the provisions of Bill C-95 be retained and expanded, specifically matters that relate to restraining and forfeiting proceeds of crime. Also, those provisions that extend part VI, wiretap authorizations and access to income tax information in relation to criminal organizations, must continue in order to ensure that the police have the necessary means to investigate organized crime.

Bill C-24 may, however, fall short in its effect on organized crime at an international level. Where a group of three or more persons—and persons in the Criminal Code may be real or corporate persons—has as one of its main purposes or activities the facilitation of one or more serious offences, presumably some or even all of those three persons may be located outside of Canada. While the most visible aspect of organized crime is often the acts of violence and drug abuse on the streets of Canadian towns and cities, those events are often caused by competition between rival groups regarding international distribution systems. The true power base and decision-making process are often in another jurisdiction. This legislation must include some consideration of the international aspects of organized crime in order to be effective.

Precedents for this suggestion can be found at part XII.2 of the Criminal Code, section 462.31, which covers acts or omissions that occur anywhere in regard to money laundering if those acts or omissions constitute an enterprise, crime, or designated offence in Canada. Also, at part IX, section 354, where acts or omissions respecting the possession of the proceeds of crime occur anywhere, if they had occurred in Canada, it would constitute an offence. These two offences were constituted to recognize the fluidity of criminally derived wealth, which flows easily through international boundaries.

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Criminal organizations are similarly fluid, as their members' acts of facilitation and material benefits recognize no boundaries. Consider what might occur where frauds, stock market manipulations, or weapons trafficking are committed by an organized crime group that structures itself so that one of the requisite three components is not located in Canada. In order to advance prosecutions with regard to money laundering and the possession of the proceeds of crime, it is necessary to prove the substantive offence from which the criminal benefit was derived. If the offence of participation in a criminal organization cannot be established due to international structuring, it may be impossible to attack the proceeds of crime derived from that activity.

Also, Bill C-24 states that the substantive offences must be indictable offences of five years or more or any other offence set out in the schedule. It was an anomalous situation that gambling, prostitution, and some other signature offences of organized crime were not caught by Bill C-95. All indictable offences should be included so as to make the application fully comprehensive and thus allow police and prosecutors to move forward with organized crime.

By listing offences we can expect to encounter the problem that certain offences will not be part of the legislative scheme when they are needed to counter organized crime. Advances in communication technology will create new methods of committing all profit-generating crimes, some of which have been and others that have not been heretofore utilized by organized crime groups.

All crimes related to the financial industry and the developing world of e-commerce must be considered under the umbrella of this legislation. For example, we are predicting that Internet gambling will become extremely significant to organized crime and money laundering. Yet Bill C-95 did not capture that offence as it was not punishable by imprisonment of five years or more.

The most important question surrounding Bill C-24 is whether the elements of the offence can be proven in court. While some maintain that the elements of the existing criminal organization offence are extremely difficult to prove without a confession, adequate intercepted communication, or gang member turned witness, the significant issue presented by this legislation is whether it will be seen as charter consistent.

What is of particular concern is whether proposed subsections 467.1(1) and 467.1(3) will survive, given that there is no requirement to demonstrate that the accused was a party to the offence. These provisions are reminiscent of the murder felony rule that was struck down as not having the required level of intent. The structure of this amendment breaks new ground on the required mental and physical elements and sets undefined points of intent.

The expansion of the definition of offence-related property beyond that which has been found in the Controlled Drugs and Substances Act and what has been introduced in the Criminal Code by Bill C-95 will be an extremely significant benefit to law enforcement. The seizure and forfeiture of the instrumentalities from a broader range of offences will serve to have an immediate deterrent financial impact as well as a punitive impact.

Similarly, the expansion of the definition of those offences from which the proceeds of crime can be seized and forfeited will also be a significant benefit. This could correct the situation where police investigate organized crime groups that specialize in the lucrative manufacture of counterfeit credit cards contrary to section 342 but cannot restrain or seize the proceeds of crime arising from that offence as it is not currently defined as an enterprise crime offence.

Also, there is a need to broaden access to income tax information to all designated offences, as that access is not overly intrusive and is now available only in drug and criminal organization investigations.

The initiatives to deal with intimidation are also seen to be of significant value. However, again, where the offence is applicable only to criminal justice participants, the protection should be conceptually expanded to include all vulnerable persons. It may be possible to develop no-go zones or bubble zones akin to the peace bond provisions of the Criminal Code.

What is clear is that it will become incumbent upon law enforcement to demonstrate the threat posed by organized crime. While this is an extremely difficult task, given the secretive nature of organized crime, there must be constant liaison between front-line investigators, prosecutors, and those in government who formulate criminal law policy to ensure that police have modern, charter-consistent legislation to take on criminal organizations in their totality.

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We must remember that criminal organizations do not operate in watertight compartments of drugs-only or Criminal Code-only offences. Criminal organizations engage in offences under a range of federal and provincial statutes.

At the Organized Crime Agency of British Columbia, we have designed our enforcement approach to combat this problem from this perspective. Therefore, it is necessary that we also approach the prosecutional function from this perspective as well. There must be serious consideration given to the formation of joint federal-provincial prosecutional units to effectively marshal all resources against organized crime.

Thank you.

The Chair: Thank you very much.

And now we turn to the Canadian Police Association and le Fédération des policiers du Québec.

Mr. Mike Niebudek (President, Ontario Association of Mounted Police; Vice-President, Canadian Police Association): Thank you, Mr. Chair.

My name is Mike Niebudek. As you mentioned, I am vice-president of the Canadian Police Association. With me today is Mr. Yves Prud'homme, who is also a member of our association and also the president of the Fédération des policiers et policières municipaux du Québec. Mr. Prud'homme will address some issues after my presentation.

Organized crime effects all Canadians. It undermines our economy, reduces our security, and threatens the integrity of our political institutions. In the Province of Quebec, where organized crime gangs have battled for territory, 150 murders have occurred over the past decades, including the murders of two prison guards and several other innocent bystanders.

The Canadian Police Association recently surveyed front-line police officers—investigators responsible for organized crime investigations in their jurisdictions. More than 50 investigators from coast to coast have responded. There is virtually agreement among these investigators that Canadian police agencies are presently ineffective in controlling organized crime in Canada.

The Canadian judiciary has not utilized existing legislation and available remedies to deal effectively with convicted criminals. Bill C-95 has not provided sufficient legislative support to fight organized crime.

Existing immigration laws and enforcement are not sufficient to deal with criminals originating form outside Canada. Police services do not have adequate funds for organized crime investigations. Greater priority needs to be placed on training and technology. Issues concerning territory, resources, and sharing of information continue to arise between agencies.

Making participation in a criminal organization a crime—it is ironic that those who choose to flagrantly live outside the laws of Canada are the first to seek refuge and protection from those very same laws when confronted with prosecution. Availing themselves of the best legal defence money can purchase, sophisticated criminals will challenge complex legal issues and strict technical compliance of changing rules of law enforcement.

We are pleased by the response contained in Bill C-24, which provides, first, escalating measures for various degrees of involvement with criminal organizations; secondly, a simplified definition of criminal organizations to address existing concerns; and thirdly, consecutive sentencing and increased parole ineligibility for people involved in organized crime.

Rehabilitation is ineffective in dealing with people who have made a lucrative living profiting on their illicit activities. Our sentencing and release practices should in fact focus on tougher measures to deter participation, provide meaningful consequences for criminal activities, and encourage participation with law enforcement by providing evidence against others within their organizations.

Our second point is on protecting people in the justice system from intimidation. The Canadian Police Association has called for greater protection for witnesses, victims, jury members, officials, police officers, and informants who are targeted by organized criminals to defeat the course of justice. With the growth of organized crime in our communities, we are seeing much bolder and aggressive acts by criminals against those who stand in their paths. Police officers, jail guards, judges, members of Parliament, prosecutors, and members of the media have been subjects of threats, intimidation, and violence. We support the proposals to strengthen the offences that deal with these types of conduct. We must be supported, however, with vigorous prosecution and tough sentencing practices to instil meaningful consequences on the abhorrent acts.

An investigator assigned to the proceeds-of-crime unit to address the proceeds-of-crime amendments involved in this legislation has told the Canadian Police Association that finding cases for proceeds-of-crime investigations was like “shooting fish in a barrel”. His ability to conduct investigations was limited, however, by legislative demands and resources.

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The proposals contained within Bill C-24 expand the scope of enterprise crimes for asset seizure and for exporting orders and broaden the application to any property used in the commission of a crime. These amendments address a number of shortcomings of the existing law, and we support the proposals.

[Translation]

Fourthly, law enforcement officers must be protected. On April 22, 1999 the Supreme Court of Canada, in the decision of R. vs Campbell and Shirose, ruled that the principle of Crown immunity does not cover the actions of a police officer who violates the statute, notwithstanding that those actions were taken to further a bona fide criminal investigation.

A broader base of exemptions for police officers involved in criminal investigations is required to ensure effective enforcement and adequate protection for police officers from criminal liability.

The Canadian Police Association has passed resolutions at our 1999 and 2000 annual general meetings, calling upon the Solicitor General of Canada and the Minister of Justice to introduce a statutory exemption regime that would permit effective enforcement and afford sufficient protection from liability for police officers engaged in all types of criminal investigations.

We have one issue of concern, however, with the concept of limiting immunity from certain acts. We submit that a test of reasonableness would, in any event, prevent the granting of immunity from acts such as recklessly causing death or bodily harm, sexual offences, or obstructing the course of justice.

By prescribing these limitations within law, however, we are essentially flagging for sophisticated criminals the types of crimes that will be demanded of their subject in order to establish loyalty and preclude infiltration. This may in fact cause greater harm than good, and we have expressed reservations about this approach.

In conclusion, Mr. Chairman, we are pleased to convey our support for this legislative package. There remain, however, issues that still need to be addressed and we would like to enumerate several of these for your information.

Colleagues have told us that some investigations have reportedly been abandoned due to the high cost of maintaining wiretaps, including the cost of monitoring, translation and transcription. Others fail to get off the ground.

For example, we need to streamline the criteria for obtaining warrants and electronic surveillance orders for organized crime offences.

Disclosure requirements place onerous obligations on the Crown and law enforcement to copy all documentation and materials, including sensitive witness or victim information, with little regard for cost or efficiency. Efforts to use electronic means for transfer, such as CD-ROM disclosure packages, have generally been rebuked by the defense bar and judiciary.

There is a desperate need to strengthen our correctional system to restrict the illegal activities of organized criminals within our correctional institutions.

We must provide greater funding, technology and protection to our borders to prevent the smuggling of illegal contraband, including people, drugs, child pornography and firearms.

Sophisticated organized crime groups are exploiting technology, yet police services struggle to adopt new and emergent technologies and methods.

Ultimately, the federal government has to invest sufficient resources to provide ongoing support for a comprehensive multi- jurisdictional inter-agency approach.

I will skip some of my notes in order to allow my colleague from the Quebec Federation of Police Officers to elaborate on these points.

The Canadian Police Association advocates the development and implementation of a strategic national response to organized crime, providing greater priority, funding, support and coordination for local, provincial and federal police jurisdictions.

In closing, we appreciate the attention that the Minister of Justice, the Solicitor General of Canada, their officials, and the members of this committee have dedicated to this effort, and we are pleased to convey our appreciation and support.

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The Canadian Police Association remains committed to working with the members of this committee, the government of Canada, and other stakeholders, to address this significant public safety concern.

Thank you. I will now give the floor to Mr. Yves Prud'homme, President of the Federation of Quebec Municipal Police.

The Chair: Thank you.

Mr. Yves Prud'homme (President, Fédération des policiers et policières municipaux du Québec, Canadian Police Association): Mr. Chairman, members of the committee, ladies and gentlemen, honourable members, I would like to thank you all for having allowed us to meet with you in order that we as well as the representatives of the Canadian Police Association present our comments on Bill C-24.

I would briefly remind you that the Federation of Quebec Municipal Police is an organization representing 120 union associations and over 8,800 municipal police officers throughout Quebec, including, obviously, the Fraternity of Police Officers of the Montreal Urban Community,

As you are no doubt aware, the increasing phenomenon of organized crime in Quebec, specially biker gangs, has led different police organizations to ask the legislator for antigang legislation in order to counter this specific type of crime.

In 1993, as President of the Montreal Urban Community Police Department Fraternity, I denounced the absence of legislative means and resources, both financial and human, and requested that the various governments support their police officers in the fight against this scourge. The government answered our concerns in part, but the complexity of Bill C-95, adopted in 1997, made our jobs just about impossible.

Today, we would like to congratulate the Minister of Justice, the Honourable Anne McLellan, for Bill C-24, which in a certain sense corrects what was lacking with the previous bill. We all agree that these criminal biker gangs are, in every aspect, gangs of individuals without scruples who do not hesitate to commit crimes, each and every one heinous, sometimes and even often leading to the death of innocent victims. These exceptional types of crimes require, in our opinion equally exceptional means to put an end to these acts of extreme violence.

We feel that Bill C-24 does not go far enough sending a clear and equivocal message to those working in this milieu.

Aside from the measures contained in Bill C-24, we feel that the government should envisage harsher deterrents, such as reverse onus, which would mean that the accused would have to demonstrate that they are not guilty of the offenses with which they are charged and the Crown would have to demonstrate that the charges laid and offenses committed are related to organized crime. This reversal of the onus should also apply to the proceeds of crime and specifically to the profits of organized crime and goods seized. Therefore, it would be up to the people affected by this measure to demonstrate that their goods do not come from the proceeds of crime.

As to access to parole, we feel that the proposed changes are insufficient. In our opinion, legislation should deny access to parole for those individuals who are found guilty of organized crime related offenses.

As to the resources required to efficiently combat these very wealthy criminal organizations, they are clearly deficient. On April 20th, we sent the Right Honourable Jean Chrétien, Prime Minister of Canada, a letter indicating how disappointed we were as to the sums allocated to fight this type of crime.

In fact, no new money has been added to the budget of municipal police organizations who participate in joint task forces with our police provincial and federal police brothers and sisters. Without the funding, it is impossible to increase the number of police officers and, by the same token, efficiently fight this type of crime.

To sum up, Mr. Chair, we support many of the amendments put forward by the minister, but we are seeking a more hardline approach in the hope that one day our zero tolerance policy will be an effective deterrent on organized crime.

Thank you for your attention.

The Chair: Thank you.

[English]

Finally, the Canadian Bar Association.

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Ms. Joan Bercovich (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): On behalf of the Canadian Bar Association, thank you for the opportunity to appear before you today.

As many of you know, or all of you know, the Canadian Bar Association is an association of over 37,000 lawyers across the country, and our national criminal justice section represents both crown prosecutors and defence attorneys from across the country. Our submission will be presented by Greg DelBigio today. Mr. DelBigio is an active member of our section and has appeared before this committee and others on various criminal justice matters over several years. He will present the submission and will be happy to take any questions that you might have.

Thank you.

Mr. Greg DelBigio (Member, National Criminal Justice Section, Canadian Bar Association): Thank you. I am pleased to be here. I want to thank you for the opportunity. I am pleased to be making a presentation at the same time as these police groups.

This bill is of enormous significance. We received two days' notice of this hearing, so my submissions today are not going to be complete, but silence or a failure on my part to address some points should not be interpreted as acknowledgement by the CBA or an endorsement of the provisions that I do not speak to.

The themes I'm going to speak to today are whether there's a demonstrated need for a significant change to law. Is there evidence of necessity? Is the bill an appropriately measured response to needs that exist? Once again, the CBA takes the position that some of the proposed changes are very significant; they fundamentally alter some provisions of law as they now exist.

I listened to the police groups speak and to their submissions, and I hear frustration. There's no doubt that policing is a difficult task. I have no doubt that funding would improve their opportunities to attain the objectives that they work to do. I hear them speak of proceeds of crime, and it might be that responding to proceeds of crime and money laundering is an effective way to attack organized crime. But the bill goes far beyond that.

The concern that the Canadian Bar Association has is the maintenance of the rule of law. The Supreme Court of Canada said that it is a deeply ingrained value in our democratic system that ends do not justify means. Frustration with the current ability to enforce law in an effective way must not give way to responses that are not measured and that are not necessary. If there is treachery in the criminal element, it does not follow that the police must be allowed to be equally treacherous. Such reasoning tears at the fabric of our democracy. Such reasoning undermines our rule of law. It is imperative above all that the rule of law be maintained.

The CBA takes the position that the evolution of law must be slow and measured, and it's only then that it's possible to determine the efficacy of any change that might be brought about—whether a change will enhance the ability of the police forces to obtain their objectives, or whether the change will operate in a way that is undesirable. Slow change is needed for that reason. Historically, the law has evolved in slow and measured ways. But this bill departs from that. Rapid change in law may disrupt the law in ways that cannot be predicted.

Generally speaking—I'm beginning with general concerns, and I will turn to specific concerns that the CBA has—the CBA is generally concerned about accountability. Policing must be open, and policing must be accountable. There have been regrettable examples where zeal replaces professional judgment. Not all cases where that occurs are detected. In some of those cases where that has been detected, we know that the consequences have been undesirable, to understate the consequences.

There needs to be a mechanism for review in a court of law for any change that occurs to any extraordinary police power such as a search warrant, such as a wire tap authorization. It must be the last resort rather than a first resort. These are measures, again, that must be used not because of frustration, not because there aren't sufficient resources being given to policing.

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There's a particular risk when agents are being used and when agents are given a latitude to break the law in order to advance some investigative objectives. It must be known that agents are commonly, but not always, themselves criminals. They are often people who are motivated by personal gain. They are people who, more frequently than not, are not credible, not reliable, not accountable, and very frequently they are not to be trusted.

The CBA is very much and very strongly opposed to any police power that would be extended to agents. We take the position that the existing laws are sufficient. We take the position that any of the concerns that have been expressed by the police groups can likely be addressed through funding, and there's no need to resort to changes in the law.

With respect to the specific provisions I'd like to address, I want to say that in a news release from April 5, the Department of Justice stated “There are aggressive new measures to fight organized crime”. The most significant aspect of the bill is the power that the bill would provide to police officers to break the law, and it's notable that, though the emphasis upon the bill has been organized crime, the power that is proposed is not confined to the investigation of organized crime; it is a power that goes beyond organized crime. If there is any need to use this type of a power to investigate organized crime—the CBA takes the position that there is not—but if there is a need, it must be restricted to the investigation of organized crime.

My earlier comments with respect to the rule of law apply to law-breaking by the police. As an example of the way that this law is not well tailored and the way in which it is extreme, the bill would permit offences to be committed by the police that are simply unacceptable. They're unacceptable, no doubt, to members of the general public, and they're unacceptable, we submit, to all.

For example, the bill would permit the police to engage in break and enter, in kidnapping, in unlawful confinement, in uttering threats, and in extortion. These are some of the most serious offences contained within the Criminal Code, and one must query why on earth it is necessary that the police should be required or permitted to engage in these acts of criminality.

The authorization by a senior official is an insufficient safeguard. Unlike a search warrant, which is authorized by an independent justice official, or a wiretap authorization, which is authorized by a superior court judge, it is simply the case that however well-intentioned a senior police official might be, a senior police official is not independent. A senior police official cannot exercise the judgment that might be exercised by a judge in providing authorization to extraordinary police measures. Again, it was our Supreme Court of Canada that stated that prior authorization by an independent person capable of acting judicially was what was necessary.

The bill permits damage to property. The bill provides that some time after the fact, notice should be given to the owner of the property. But there's no provision for compensation for damage. This is a significant omission, because it's simply insufficient. If it is justified that the police are permitted to break the law, and if it is justified that the police can damage property and then that notice be provided to the innocent parties, surely there must be a compensation scheme. Surely it's insufficient for people to simply be told that their property was damaged for some police purpose and that is all.

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With respect to the definition of “criminal organization”, the position of the CBA is that the definition, which is watered down to three people, is far too inclusive. It trivializes the meaning of “criminal organization”, and the position of the CBA is that existing provisions can and should be relied upon. The existing definitions of “organized crime”, of “aiding and abetting”, of “conspiracy”, are all well-known principles of law that, when used with proper resources of policing, will provide the police with proper tools to do what they need, which is to attack organized crime. Thank you.

The Chair: Thank you very much.

I want to thank all the witnesses for responding on such short notice. I made that apology in advance this morning and was reminded to repeat it. So I do that.

I also want to thank you all for coming in at very close to ten minutes each. So maybe our committee members will not need to be reminded that they have seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

I certainly appreciated the comments made today. I think it's helpful for the committee in reaching its conclusions.

Certainly the submissions of the police organizations are of great assistance to me, that we need political will, police forces need funding, and police must demonstrate leadership, because they are indeed the front line in our fight against crime.

I'm disturbed to hear it said the new funding that the government announced really doesn't trickle down to the municipal police forces, and I think that is correct. It confirms what I indicated earlier and stated earlier, and it disturbs me that our municipal police forces, who are really on the front lines of most of the fight against organized crime, don't get the benefit of some of the federal largesse, if we can use that term.

But moving along, this morning we heard from a witness who stated that because some crimes are victimless, those crimes should be excluded from the scope of some of the bill's provisions—for example, the authority of a police officer to break the law under specific conditions. In particular, the laws that were mentioned were prostitution and drug trafficking.

As a former crown attorney and former provincial Minister of Justice, I have to say that I was somewhat taken aback by the assertion that those are victimless crimes. By that, I take it that they don't have an impact on human beings, that somehow these crimes exist in a vacuum. So perhaps I'm naive. Perhaps I don't understand the impact of drug trafficking and of child prostitution, and the impact this has on our communities.

Also, the same witness suggested that perhaps giving the judiciary, or some independent law agency like a judge, the power to authorize the specific conditions before a peace officer should be authorized to engage in the very careful and measured activity he or she can engage in. That again caused me concern, because although we have the judiciary supervising the general operation and ultimately evaluating the criminal investigation in the course of a trial, I'm deeply concerned when there's a suggestion that the judiciary get involved in the day-to-day operations of the police forces beyond search warrants and some of those things. That concerns me greatly.

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I also noted that some of the comments related to Bill C-24 were to the effect that it does not go far enough. The concern with access to parole, for example, was something that interested me. I heard your comments, and then I had to juxtapose them with the comments of the CBA, which said that the law must undergo slow and measured change.

I couldn't help but somehow have the image in my mind of police being compelled to drive a horse and buggy down the Trans-Canada Highway. I simply fail to understand where the CBA is coming from. They claim to represent crown attorneys, but I'd be interested in learning how many crown attorneys they actually consulted on this.

I'd first of all like to hear from the police to see whether I'm off base, and maybe the CBA can then also correct me on the issue of why police officers shouldn't be given tools that are appropriate to the modern age.

The Chair: Thank you very much.

I'll move in the direction the presentations were made.

I would also bring to your attention the fact that this was a five-minute question, so now we need to cram three answers into the time for two.

Insp Mike Ryan: Thank you, Mr. Chairman.

This is in response to Mr. DelBigio's earlier comments arguing for slower rather than rapid change and to my colleague from the Canadian Association of Chiefs of Police, who discussed some of the disclosure issues. The horse and wagon that's just been referred to in terms of disclosure is thousands and thousands of documents at costs sometimes of $10,000 per accused, documents that have to be released and borne by the criminal justice system at a total cost sometimes exceeding hundreds of thousands of dollars.

I hold in my hand three CD-ROMs that contain scanned images of 45,000 documents representing the total work product of one investigation for three years. The cost of reproducing each of these CDs is $3. Now, we're trying not to be in a horse and buggy in this day and age, but we need the tools to get out of it.

Mr. Mike Niebudek: Mr. Chair, I'd like to address the question of accountability as far as criminal offences committed by police officers or agents. I think it's important to know that before the Shirose and Campbell decision, this problem did in fact arise in certain investigations. However, what this piece of legislation does is to establish an accountability process to protect law enforcement officers.

I feel that within the regulations and the administrative part of this legislation, with senior police officials we will be able to control the.... It's not a blank cheque. It's not a matter of sending an agent out there and saying, let's go get some evidence, and you have carte blanche. That is not the case whatsoever.

Anybody, including my friends from British Columbia, will tell you that right now, before getting an authorization to conduct a criminal investigation on these groups, we have to go through layers and layers of approval within our departments and agencies. There are checks and balances there, and what Bill C-24 does is add onto these with accountability towards senior officials.

The Chair: Is there anything from the Canadian Bar?

Mr. Greg DelBigio: I'm sure that the committee member who asked the question does not mean to suggest that we do not represent both defence and the crown. The CBA very clearly does represent both defence counsel and crown counsel, and they are equally represented.

With respect to the horse and buggy, the CBA's position is that the Criminal Code and its existing provisions are not a horse and buggy, and I'm not suggesting the CBA suggests that there should be no tools. It's just that in deciding what tools there should be, we need to have careful decisions based upon evidence of need, evidence that the tools being proposed will be put to proper use, evidence that they will work, and evidence that they are not contrary to the rule of law as it currently exists.

The Chair: Thank you very much.

Monsieur Ménard, you have seven minutes.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I have four questions.

I was somewhat taken aback by what the representatives of the Canadian Bar Association said. In pushing for a gradual change to criminal law, you are obviously not considering the fact that organized crime is getting organized and developing a lot more quickly.

• 1620

Today, the former member of Parliament and minister under Pierre Elliott Trudeau, Mr. Kaplan is coming to Parliament. A lucky turn of events allowed me to have lunch with him and I hope that he feels that it was a lucky turn of events too. We discussed organized crime. I am convinced that were he to appear before this committee today, he would tell us that organized crime in the 21st century is far removed from what it was when he was solicitor general. Consequently, in terms of criminal law, we sometimes have to move as quickly as criminal organizations themselves and also keep pace with their ability to adapt.

I'm going to ask you four questions one after the other, and I would appreciate an answer.

Do you know how many charges have been laid under C-95? If you are saying that we don't need legislative change, I think that it would be useful for this committee to know how many charges have been laid under C-95. As members of Parliament, we have been told that the definition of organized crime is so complex that it is difficult to lay charges and prove cases of organized crime in the courts.

However, I am very open to what you have said on the notion of immunity. This morning, witnesses told us that the scope of immunity is perhaps too far-reaching. I am going to play devil's advocate here and would like to ask you whether the police agree that the notion of immunity, as it is laid out in the bill, would allow break and enter, forcible confinement, and kidnapping; in a nutshell, the four offenses mentioned by the Canadian Bar Association.

Thirdly, I would like to ask the police officers, perhaps Mr. Prud'homme and his colleague Mike, to explain item 2, on page 5 of your brief, where you talk about the need to restrict illegal operations by criminal organizations within correctional facilities. What measures are you referring to exactly?

Now for my final question. Am I to understand that, in terms of the Stinchcombe ruling and in terms of the disclosure of evidence, you consider that the bill does not really facilitate your job and that it has not improved things very much?

I think we should start with you. However, I do not want to supplant you, Mr. Chair.

[English]

Mr. Greg DelBigio: I don't know how many charges there have been under Bill C-95, but even if there have been none, it doesn't follow that these legislative changes are necessary. If there have been no charges or if there have been what is regarded as an insufficient number of charges, there are many possible causes for that. Insufficient resources might be one such explanation. While it might be that organized crime changes quickly, the change of law is not a race. The change of law needs to address changing needs, but the constitutionality of law is not determined by the speed with which it is enacted. Speed makes us run the risk of law being improperly considered and unconstitutional.

I'll let my colleagues from the other committees answer the other questions.

[Translation]

Mr. Yves Prud'homme: Mr. Chair, I would like to make one brief comment. In the opinion of my colleagues to my right, I did not answer the question on the issue of slowness.

Since the 1990s, and these things take a number of years to... It is now 2001 and back in 1993, we were already experiencing major problems in Quebec.

There was specific legislation in place at that time. Bill C- 95 was passed in 1997. I do not have figures in terms of the number of charges which have been laid under C-95, but I can tell you that the recent Operation Spring 2001 enabled us to lay a total of 922 charges against 160 people, but not all of them under C-95.

I would just like to add that unfortunately, cuts in staffing and budgets of police organizations throughout Quebec and possibly even throughout Canada, have forced us to put an end to our operations in this area. This has left the door open to criminals. In the early 1990s we went through a period of lay-offs.

My colleagues to my right have talked about the rule of law and the enforcement of the law. Perhaps, as a society, we should ask ourselves about where the rights of the victims of organized crime fit into all this.

• 1625

Are we going to continue to tolerate the provocation that we have seen in Quebec. I am talking in particular about sessions of the Court of Justice in Quebec and the Victory parades of organized crime from the courthouse in Montreal? What is to be done about the rights of victims, and the rights of law-abiding citizens, who want to live in peace?

I will now give the floor to Mr. Mike Niebudek.

Mr. Réal Ménard: Don't forget my question about immunity. Do you agree?

Mr. Yves Prud'homme: I will allow my colleague to answer that part.

Mr. Mike Niebudek: First off, in terms of the number of charges, my colleague has already answered that. Yes, in 1993, we began to look at the type of legislative tools that we needed to tackle contemporary organized crime.

In 1997 Bill C-95 was passed. It amended specific provisions of the Criminal Code in an attempt to tackle these issues. We are here today, in 2001, before a House committee to give our comments on another round of amendments.

Four or five years from now, when organized crime will have developed further, we will be back here to attempt to find other legislative tools to address the problem, because organized crime is a living entity. Instead of being 10 years behind, perhaps we will only be two or three years behind. It's not over yet. This bill will be another step in the struggle against organized crime, but there will, undoubtedly, be others that we will have to make at a later date.

In terms of the measures relating to correctional facilities that I mentioned, we are very well aware that currently, in some correctional facilities, criminals are able to carry on their criminal activities either by telephone or during visiting hours. It has not escaped our notice that some kingpins continue to oversee criminal organizations from within prison. We are advocating stricter regulations for those individuals found guilty of organized crime in order to restrict their privileges in prison, to make it impossible for them to continue to perpetrate crimes.

In terms of the Stinchcombe ruling, as my colleague mentioned earlier, when he talked about CD-Roms, we have to allow prosecutors, who are represented by the association immediately to my right, access to high-tech solutions to help the police do their job. These people spend months and months photocopying tons of documents.

Mr. Réal Ménard: Could I ask one last question...

[English]

The Chair: No. On to the next group. We're way over, Réal.

Mr. Réal Ménard: It's my birthday next week.

The Chair: See me next week.

Mr. Dave Douglas: I'd like to make a brief comment on the number of Bill C-95 investigations that we have ongoing in British Columbia. The difficulty with that legislation and putting it into an effective enforcement model is sheer dollars. It costs anywhere from $1.25 million to $1.5 million to investigate one colour-bearing member of the Hells Angels. These groups have formed themselves into a cellular structure. They're difficult to infiltrate. Once you get in there, it's costly to continue that investigation. It takes a long time.

In Edmonton recently—it's an ongoing case right now, the first test of the new anti-gang law—there are 33 accused, plus two corporations, on charges of conspiracy, money laundering, and drug trafficking. The trial should last six months. The crown's case involves 70,000 pages of documents, 450 tapes containing 4,300 conversations, and the jury will be required to bring in more than 200 verdicts. So this is a huge project, never mind for the police, for the judiciary too.

I think it boils down to, first, the ability of the police to investigate criminal organizations via Bill C-95, and that comes back to the leadership issue, where we're focusing and allocating our resources to our hard priorities and our hard targets. Furthermore, down the road, it involves the ability of the judiciary to handle the sheer volume of that kind of testimony.

The Chair: Thank you very much.

Mr. Owen, seven minutes.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you.

I'd like to touch on a couple of issues related to resources that keep coming up, but drawing from the description we've heard from I think all of the officers who have spoken to us today about the changing nature of organized crime and the consequent need for a changing nature of law enforcement activities, in particular the effective sharing of information.

• 1630

It was mentioned that traditionally law enforcement agencies have not shared effectively with each other, through competition and suspicion, and legitimate concerns about integrity of information they're passing. But because of the need to in effect mimic this new type of organized crime across geographical boundaries, across criminal activity types, and with cells that cross criminal organizations, it seems necessary—and I think the Organized Crime Agency of B.C. has shown some real leadership in the last few years of its existence—to organize joint force operations that allow law enforcement agencies to uniquely compose, among them, the appropriate approach to a particular criminal activity.

I'm hoping, first of all, and I'd like some response, please, that if this plays out properly and the hard targets Chief Officer Douglas mentions are effectively targeted with uniquely composed joint force operations, in fact the extra resources will be shared with municipal police forces, and among all police forces, in a more effective way. I hope that's the case.

This is not to suggest the current resources are adequate to the task, and particularly with respect to a second concern I have. This is with the nature of criminal organizations such as the Hell's Angels, which has the characteristic that the qualification period between being an outrider to being a full colours member of the Hell's Angels is so lengthy that the individual is tracked and therefore trusted in a gradual way and it's very hard to get undercover into those organizations. Therefore, the only way to really get inside to the real kingpins is through people who are turned. This means witness protection and it means, as you know much better than I, millions of dollars even for one particular case of relocation and protection.

I wonder if your experience in dealing with that type of turning necessity is proving more successful. Are some of the recent charges and successful operations a result of new techniques in addressing that difficulty of infiltration, combined, of course, with the problem of infiltration where you have uniquely composed cells within this band, so you're not tracking a constant, you're tracking a constantly moving target?

I'd welcome some of your recent experience in the approaches you're taking in those two areas.

Mr. Dave Douglas: I think when we talk about those kinds of investigations—and Hell's Angels are just one group, but all of these groups are configured relatively the same, with a hierarchy within them—we've moved toward a project enforcement model.

You talk about partnerships, and were very much into partnerships. We have local municipal partnerships, and 37 municipal police persons are in the agency right now. We facilitate a number of these ongoing large-scale projects in the lower mainland area and Vancouver Island in conjunction with other police departments, including the RCMP.

We have formed a technique where we have intelligence-led investigations, and we prioritize the targets, go into a project-style enforcement model, and then develop those partnerships locally, nationally, or internationally. And then we go into the actual enforcement model with a coordinated prosecution plan, a coordinated enforcement plan.

When we go into that organization, which may have 37 people in it, we focus on the key people in that organization because it makes sense to do this. Whether we prosecute those people or not is basically up to the coordinated prosecution plan that's developed and is ongoing as we continue through that investigation.

We like to leapfrog from one place to another, always going up that building block, working towards the top. And hopefully, in a year, two years, or three years—and these are major projects that sometimes take three years—you get to the top and the key members of those organizations.

If we look at the grow operations situation in British Columbia, where we have anywhere from 8,000 to 10,000 hydroponic marijuana grow operations in the lower mainland area alone, it's generating huge amounts of money that is being fed back into different sorts of criminality. We have 37 different police agencies, national and international, feeding into a database within the agency called Project Emerald.

• 1635

Out of this we developed a strategic targeting process that develops key people in those cells who are responsible for the actual transshipment of that drug down south. We're not interested in the growers, who are mostly Vietnamese. We're interested in the brokers, who are Asian-based, the Big Circle Boys, who are working in very close concert with Hell's Angels to distribute that drug south. And there's what we call green south and green and white north: money and cocaine coming north, marijuana going south. It's a constant thing. We strategically target key people for enforcement within those groups. It would be ridiculous to think we can prosecute everybody in that group. We don't want to. We want key people, and when we go into these projects, that's how we do it. We strategically target key people.

[Translation]

The Chair: Mr. Prud'homme.

Mr. Yves Prud'homme: Mr. Chair, in terms of coordinating operations, I would like to talk to you about Quebec's experiment with integrated organized crime units. This experiment terminated in Operation Spring 2001, where, I would just like to point out, we brought together, under the umbrella of the integrated units, municipal police forces, the Sûreté du Québec and the RCMP. We had some very good exchanges of information, because you must understand that criminal biker gangs represent a very specific problem. You have mentioned the hierarchy in different levels of organized crime, but one witness in particular pointed out to you that it can take many years to get to the people at the head of the organization. Indeed, we do use informants, we also use undercover agents, but we try to use a variety of methods. However, imagine that you are required to commit a murder as a test of your loyalty to the criminal organization... You have to understand that there are limits to infiltration.

Having said that, we have heard a lot about criminal biker gangs, but organized crime doesn't stop at criminal biker gangs. If we are to talk to you about our methods, we also have to tell you that currently, in Montreal, we have the Russian, Italian and Vietnamese mafia, to name but a few. Consequently, the methods that I have talked to you about are not only used for criminal biker gangs. That's why we are saying that we need more resources. While, over the past three years, we have indeed focused on criminal biker gangs, this is only one aspect of organized crime in Quebec and in Canada as a whole for that matter.

[English]

The Chair: Thank you very much.

Did the Canadian Bar want to say anything?

Mr. Greg DelBigio: I'd like to make a brief comment about that.

The Chair: Very quickly.

Mr. Greg DelBigio: Resources is the focus of the submissions, from what I hear. A law that is unconstitutional will be challenged. If it is successful in its challenge, any prosecution that was hingeing upon this law is going to fall. That is going to increase time and that is going to increase costs. A line needs to be drawn. Just because there is a problem of crime, it doesn't follow that all measures are justified. The question is how do you draw the line, and the CBA submits we've put forward a principled approach.

The Chair: Thank you very much.

To Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, and welcome to all the witnesses. I apologize for my late arrival.

With respect to resources, I'm wondering what specific information you've received from either the Department of Justice or the Solicitor General department. We heard from the minister this morning. We know that certain amounts of this $200 million have been earmarked. It's spread out over five years.

Without having heard the balance of your remarks, I know the complexity that is involved, the training aspect, the number of witnesses who may be required, the complexity of the cases, disclosure, all of these new and very onerous responsibilities that will fall mostly on the police in the presentation of a case. It seemed to me that this money's going to get eaten up pretty quickly, not only over five years but probably within the first few years, where the learning curve is highest.

• 1640

Without even going into the merits of giving you $200 million over five years, which goes beyond the current Liberal government's mandate—I'll leave that commentary for another time—is this money coming to you quickly? We've heard the $580 million announcement about 11 times now. How much of that money has made it into police coffers? And are you satisfied that this $200 million is going to start flowing in concert with this legislation, were it to come into effect this fall? Is the money coming at the same time as the legislation?

Mr. Mike Niebudek: I just want to make a comment. Thank you, Mr. MacKay, for your question.

First of all, the $200 million is tacked on to the $580 million authorized in April 2000. So we've already passed that year. If you look at it, half of that $200 million is also for the protection of the border. So this leaves $20 million a year. We've already spent the first year's, so we have basically the balance of the $40 million and $60 million coming, which is a drop in the bucket, really.

We've said from the beginning that the financial resources are not enough, and as my colleagues Mr. Prud'homme and Mr. Douglas have mentioned, there is a crying need to get more financial resources to major municipal and provincial police departments and agencies.

Mr. Dave Douglas: I'd just like to make a comment on funding because, before I came to the agency a year ago to be the chief officer, I was the national organized crime officer for the Pacific region for the RCMP. At the Canadian Association of Chiefs of Police Conference in Saint John last summer, the Solicitor General made some opening remarks at that conference and talked about $200 million and the fight against organized crime.

From my perspective, having been involved in the front end of that process, out of that $200 million, $15.1 million went to the organized crime initiative within the RCMP. Less than 1%—$750,000—came to British Columbia. That's all.

Mr. Peter MacKay: So you're not—

Mr. Dave Douglas: To front-line policing.

Mr. Peter MacKay: —satisfied that it's been spread out proportionately across the country or even within the organizations that are to be recipients?

Mr. Dave Douglas: Well, I don't think it is. It goes back to, I guess, my opening comments, which were about the fact that there's a lot of good work being done by a lot of other agencies out there. The Organized Crime Agency of British Columbia is unique in this country. It's the only stand-alone, independent police department with full police powers assigned to combat organized crime, which affects all British Columbians. That's our mandate.

Other than the operating and maintenance money that we get from the RCMP for the 45 secondments, we get absolutely zero beyond that. Our operating budget, like I said, is 8% to 10% of our police budget. So we're looking at somewhere in the neighbourhood of $1.5 million. That's a kick in the bucket. That's one project.

That's the investigative side; never mind the disclosure side and the witness protection, or all of the other financial facets of an investigation. It's simply not enough money coming to the front end. Especially when you blow these kinds of figures like $200 million around, it sounds like a lot of money. But in reality, when only less than 1% is actually being plugged into an operational police budget, it's really not enough.

Mr. John McKay: On the training side of it, I suspect that this will be costly as well, and this creation of a new designation of police officer that has the ministerial anointing or blessing.... Are you satisfied with respect to firm guidelines—training guidelines—that will accompany these new powers?

And in terms of tracing the accountability as it is laid out in the legislation, it's supposed to go back to the minister ultimately. But you and I both know that if something goes astray in the field where police officers are empowered with this new ability to break the law if and when necessary, it's not going to be the minister who shows up at a police hearing to answer.

Is that clear in the legislation, in your mind? Are you satisfied on this level of accountability that's to exist? Because we are talking about in some instances extraordinary new powers.

Insp Mike Ryan: I'd like to address that if I could, Mr. Chairman.

It leads back to an earlier question by Mr. Ménard. Mr. DelBigio mentioned the absence of compensation. There's something to be considered here. If I understand Bill C-24 correctly, I do not believe that the police are exonerated from their civil obligations as a result of any damage or harm that may occur. I would suggest that acts as a significant balancing factor in determining what kind of conduct the police will undertake.

• 1645

Routinely, unfortunately, damage does occur to property during searches. We have to break into places and damage doors and things of that nature. We pay for that damage. That's part of the equation we're involved in. So I would suggest that in the absence of a compensation system, there is a balance there in place with regard to the civil ramifications we will face.

In regard to the accountability equation, I believe this is correct, that there is definitely a training issue there and a need for accountability, and it is something policing is going to have to come to grips with.

The Chair: Thank you very much.

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): My first question is to the police representatives and is with respect to proposed subsection 25.1(11), on page 7. That is this process of limited immunity.

I wonder whether we're setting up a law of unintended consequences here. Because according to the section, nothing in the section justifies intentional or criminally negligent causing of death, bodily harm, obstructing justice, and I think the other one is violating the sexual integrity of the individual.

I wonder whether the unintended consequence of this is that in order to be able to gain the confidence of organized crime, this will become the test. Organized crime is extremely well advised. They have the best lawyers money can buy. This information will immediately be communicated through the network of organized crime. And if one is in fact intending to penetrate organized crime, the test will now be that you have to kill somebody, assault somebody, sexually assault somebody, or you have to participate in organized crime. So that's my first question.

My second question is to the Canadian Bar Association, and it is with respect to proposed subsection 467.13(1) of page 31. Is there a concern they have had in their review of the legislation, however brief the review might have been, that with respect to proposed subsection 467.13(2) there's no requirement that the accused knew the identity of all of the people who were involved with him? So presumably one could be facing a life sentence and not even know the members of one's own organized crime unit. It does strike me as a bit of an anomaly, and I'd be interested in your comments on that.

The third question is with respect to number 4 of your summary of recommendations in “Drawing the Line on Policing”. You say that if the amendments are to be accepted in any form.... I must admit, this is done by lawyers, and I have to admire you guys, because you start, can't do it, then, if you're going to do it, only this little exception, and if you are it should be very narrowly defined.

Anyway, we're down to four here, and you say that it “should at least require the authorization of a specifically defined senior official.” What I don't understand is what's the difference between that and the scheme in the act, which in the case of the RCMP means the competent authority, the Solicitor General of Canada, personally—interesting choice of a phrase, personally—is able to designate a competent authority, that a competent authority may designate a senior official, or senior officials.

So I don't really understand what is objectionable in the legislation, given your comment number 4 on page 27.

The Chair: Thank you very much. I'm not too sure how we're going to direct these questions.

Mr. John McKay: The first one was to the police, the second two were for the bar.

The Chair: Fine.

Insp Mike Ryan: With respect to the unintended consequences of law-breaking becoming a test for entrance into organized crime, yes, I think that is a concern. I think that any time you carve out an exception, there's a consequence associated with it. It would be of course up to law enforcement to step away from that kind of a situation, but I agree with you. It's a point well taken, and I don't have an answer as to how to avoid having that happen.

• 1650

Mr. Mike Niebudek: On that issue, Mr. Chair, before the Shirose and Campbell decision, there was a common-law grant, if you want, for the police to engage in such activities and receive some type of immunity. As a consequence, the amendments are required to permit undercover officers and agents to further our sophisticated criminal investigations.

We passed resolutions, as I mentioned earlier in my presentation, in 1999 and 2000 calling upon the Solicitor General and the Minister of Justice to introduce these exemptions, but without exceptions. The issue of concern we've raised throughout our discussion with the Minister of Justice and her staff is the concept of limiting immunity for certain acts, which, as you mentioned, clearly would be the test for certain organizations, either to join or other.

And we submit that a test of reasonableness would, in any event, prevent the granting of immunity from acts such as recklessly causing death or bodily harm, sexual offences or obstructing the course of justice by the parameters existing administratively in the different agencies and departments. But, yes, it is absolutely a concern for our association that we have created limitations.

The Chair: Thank you. Now, to the bar, in response to other questions.

Mr. Greg DelBigio: Thank you.

The Canadian Bar Association does regard it as a concern, and this is in respect to proposed section 467.13, that it is not necessary that an accused know the identity of all persons. And there is further concern when that's read in conjunction with 467.11(1) and 467.11(2). So there are all these provisions for which it is not necessary that the prosecutor prove. I believe it is the Organized Crime Agency, in its first submission, that made some remarks about the constitutionality of that and the elimination of the mens rea requirement, the mental state that is traditionally associated with crime. We take the position that this erases the mental element that is needed and desirable.

With respect to the second question, I maintain it is very much our first position that just as the law now requires that judges authorize search warrants and wiretaps, the commission of these types of offences is at least as bad as breaking into a house to execute a search warrant or the interception of private communications. In light of that, there is no justification for a different standard of authorization. But if there is—to address the alternative points—then it should at least be the case that for each offence that might be committed there must be authorization by a senior official and it must not be left to a front-line officer and his or her own discretion.

The Chair: Thank you very much.

To Mr. Cadman, three minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and I'll be brief, because it might require a lengthy answer.

It's a purely west coast question, gentlemen, with respect to the Port of Vancouver. Could you give us some indication of the role the port actually plays, or the problems it causes you, and, maybe to a lesser extent, the role of some of the other ports around, like Prince Rupert, the Fraser River Port Authority, and some of the problems you encounter there?

Mr. Dave Douglas: Within the agency we have a ports component, which is a joint force operation with the RCMP, ourselves, Canada Customs, the ports corporations, and it's a component within the agency that strategically targets those kinds of organized crime groups around the ports. The Hell's Angels, I believe, have 37 members on the longshoremen's union there.

We've been very successful in the past three or four months in making numerous seizures at the port of Vancouver, both in the container port and other ports over on Vancouver Island. And we're successful at it because we strategically target key groups for enforcement. I think the sheer volume of container traffic there is somewhere in the neighbourhood of 1.5 million containers a year. So trying to detect it in any other way is almost impossible, unless by sheer luck.

• 1655

But as I said before, by strategically targeting for enforcement those key groups who use the port of entry, we've been very successful in the last few months with seizures of tonnes of marijuana in containers, alien smuggling, and 2.5 tonnes of cocaine that were seized just off the coast of Vancouver Island. We've been very successful.

Mr. Chuck Cadman: As a percentage, how much are you actually nailing?

Mr. Dave Douglas: I'll give you a good example of this. Through the intelligence that was gained in the investigation of a recent case that involved 200 kilograms of heroin in a container that was seized, the day these people were arrested—and this is a three-year investigation that cost $7 million—there was another seizure taken in the Toronto area.

They were talking about holding back on distributing the 200 kilos of heroin so the price would be driven up in Canada and they'd make more money at it. Meanwhile, back at the ranch, because they're figuring they're going to make more money at this, they're ordering another container. In the end, we found they had already brought in 17 containers in the past year that we didn't know about. So what are we getting? It's hard to say. There are huge amounts of narcotics coming in through that port.

The Chair: Thank you very much.

Ms. Sgro.

Ms. Judy Sgro (York West, Lib.): In regard to the proceeds of crime that we talk about a lot, are you seeing any of the benefits down at your local level? This is, in particular, to the fellow from British Columbia who talked about it.

Insp Mike Ryan: Under the Seized Property Management Act and the regulations, any investigations that are prosecuted federally within British Columbia see those forfeited proceeds accruing to the federal government.

We raised this issue with the province in approximately 1997, and I'm aware that the province has written on the matter. At this point in time, the last information I had was that British Columbia does not feel that it's receiving its fair share of distribution from the federally seized proceeds-of-crime program.

Mr. Dave Douglas: I would make one comment on it. In every investigation or project that we build and the major case model that we use to start up our projects, we build in a proceeds-of-crime component. The only way to disrupt and suppress organized crime is to go after the assets. The deterrent just isn't there, so the only way to do it is to seize the assets.

In the last year we have seized in excess of our own budget in cash. We've paid for ourselves in the last year just on sheer money seizures. As I said in my opening remarks, we're faced with, from just one Asian group, Big Circle Boys, $1 million a day being laundered out of British Columbia.

I would say marijuana cultivation is huge. It has to be the number-three export of British Columbia right now.

We're making an impact, but we can get better at it, and we are getting better at it by focusing on key people for enforcement.

I'll give you an example. We target a group, and the coordinated enforcement plan involves two red dots in the middle of this cell. We use the intelligence gained through part VI intercepts to go in and take out those two people with significant money. Within two weeks, there were $2.3 million seized from that one group alone, along with the fact that the seizure of marijuana was in the millions, the product ready to go south. There's a huge market south of the border.

The Chair: Thank you very much.

Mr. Ménard.

[Translation]

Mr. Réal Ménard: I would like to understand clearly both points of view of the witnesses regarding immunity.

• 1700

You say that the bill, as it is tabled, would allow police officers to commit offences for which anyone could be prosecuted under the criminal code, and you gave four examples of this.

I would like you to explain this and I would like to know whether the police officers share this interpretation. Do you think that it would be possible? You seem to be advising that a judge should be responsible for determining what kind of action could be allowed during criminal investigations. I would like for both sides to explain to us the merits and the disadvantages of this proposal, because the immunity issue is fundamental and will have an influence on the amendments that we will propose. I think it is important for us to understand your respective positions.

[English]

Mr. Greg DelBigio: The CBA takes the position that—as I read the bill—the provisions of immunity are not integral to the bill. They can be severed from the bill. Some of the concerns the bill otherwise addresses remain.

With respect to the crimes that would be permitted, if one looks at the bill and looks at those crimes that are specifically precluded, that then invites a list of crimes that of necessity, or inferentially, are permitted. So nothing in this section justifies intentional or criminally negligent causing of death or bodily harm, or the wilful attempt in any manner to obstruct or pervert the course of justice, etc. So there are some offences that are enumerated and some offences that are precluded. Inferentially, it then means that there is a whole list of offences that are permitted.

So that is the argument upon which the CBA says that serious offences are permitted, and that is a very serious step in law to take.

With respect to whether or not there should be judges who authorize these police investigative steps, it is already judges. The CBA's position is that judges, first of all, have the constitutional status—the independence—which our Supreme Court of Canada said is required for search warrants and for wiretaps. They're well suited to do this, and it is a familiar domain because they already do it for search warrants and for wiretaps.

It is not interfering with day-to-day policing and the minutiae of that. It is regulating significant aspects of policing and providing an accountability to it. There is no disadvantage, the CBA submits, to having a judge do that, because, once again, it is a mechanism that is already in place. It's already familiar, and the judges provide expertise, if you will, with respect to constitutionality and the limitations that must be placed on law enforcement.

[Translation]

Mr. Mike Niebudek: Mr. Chair, as I said earlier, the exclusions currently in the bill that involve serious crime, sexual crimes for instance, could be used by criminal organizations to screen people. Infiltrators, be they informers or police officers, would be caught up in impossible situations.

With regard to—

Mr. Réal Ménard: I do not understand what you mean.

Mr. Mike Niebudek: Let me give you an example where someone, a police informer, for instance, is supposed to infiltrate a criminal organization. If, for instance, this person is asked to commit a sexual offence, this person would refuse because of the act and would automatically be labelled as a police officer or an informer.

This law would provide, if you wish, a tool for criminal organizations. We say that there are already tests used by police management, by provincial, federal and some municipal governments to prevent this kind of exaggeration or offence. In the past 20 years, there has been no instance of this kind of action, while we were subject to common law, before the R. v. Campbell and Shirose decision.

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I would like to say a few words about the judicial authorization issue. To my knowledge, and please correct me if I am wrong, the Supreme Court has not filled this particular gap and did not say that judicial authorization was required. It only mentioned that the legislator must include, within the act, parameters or, if you wish, accountability tests to allow certain persons to commit certain offences which, I repeat, are very specific. This is not a blank cheque.

[English]

The Chair: Thank you very much.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I was a little surprised that your recommendation number two only took up two lines:

There is a desperate need to strengthen our correctional system to restrict the illegal activities of organized criminals within our correctional institutions.

There's not much point in putting these birds in an institution if they're going to carry on business as usual. I think everyone would probably be agreed on that. Mr. Niebudek, you did enlarge a bit on it, but what would you do? Would you restrict their communication with the outside world? I don't see how this would work, because they'd pay someone else to do it for them. Would you put them in a special institution of their own? I'm glad Mr. Borovoy isn't here this afternoon, because I know what his attitude would be on that. I'd like anything you can help me with on this. How do we do it within our present correctional system, where there is a great deal of communication from inside to outside? Then I'd like the Bar Association's slant on it.

Mr. Mike Niebudek: I'll let my colleague, Mr. Prud'homme, maybe cite you a few examples in the province of Quebec recently on that issue.

[Translation]

Mr. Yves Prud'homme: Mr. Chair, very recently we incarcerated an individual in Quebec. We gave him very specific treatment in a very isolated place. We put him in isolation. He tried to sue under the pretext that we were infringing on his rights. Since you know this individual, I do not need to give you his name.

Mr. Niebudek, the CPA and the police officers are telling you not only that all these measures are necessary, but also that they must be applied within the walls of our correctional institutions. Controlling measures will have to be provided, exceptional treatment must be reserved for those who continue directing their organizations even while they are incarcerated.

If this person recently went to court to complain about a specific treatment, it was not without a reason.

This is what we are suggesting.

The Chair: Thank you.

[English]

Mr. Grose, any more?

Mr. Ivan Grose: No. I'd like the Bar Association's slant on this, and then I'm finished.

Mr. Greg DelBigio: The Bar Association has not addressed this formally, so on this issue I cannot speak on behalf of the entire Bar Association. I will offer my personal view that great caution needs to be exercised before distinguishing between treatment of people in institutions. If indeed it is the case that evidence exists that measures continue from certain persons in the institutions, then let there be charges, let there be a prosecution. Mere innocent communication is not a sufficient concern to justify special measures.

The Chair: Thank you very much.

Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I'm wondering, from both police and Bar Association perspectives, given some of the concerns that are going to result from the inevitable charter challenges, if it would warrant exploring having this referred to the Supreme Court for a reference, to avoid the inevitable expense and distraction from the real fight against organized crime that is going to result in the prosecutors, in my view, carrying the dual purpose of prosecuting the case and, essentially, preparing the case for the federal government to fight in the Supreme Court of Canada, which is where it will ultimately be resolved. So wouldn't we really be well advised to get this done at the first instance, have the aspects, particularly, of suspension of the normal guidelines that would attach to police behaviour referred to the Supreme Court, and proceed with other elements of this legislation that we can all see the common good in?

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Mr. Mike Niebudek: You're talking about specifically the immunity issue?

Mr. Peter MacKay: The immunity elements of this Bill C-24.

Mr. Mike Niebudek: I suppose the Attorney General of Canada could ask for it. How long would that take, how long a process would it be, could it be fast-tracked in order to address the concerns that...? I think it all comes to the issue of the Shirose and Campbell decision, as far as their recommendation is concerned. The judgment, I believe, did not address the fact that it should specifically be thrown through the judicial system, but I believe it only specified that the legislator needs to address it. So if it's done in a very succinct and quick manner, I don't see any opposition to that avenue.

Insp Mike Ryan: Mr. Chairman, I'd like to point out that there already exists in the Criminal Code and in the CDSA 3 examples of police immunity. Under the CDSA police regulations the police are allowed to traffic in narcotics. That is already within the fabric of Canadian law. The second example is the money laundering legislation, section 462, which allows police officers and police agents to launder money if acting under the direction of a police investigation. The third is possession of the proceeds of crime. So we do have some of those exemptions already in place.

The Shirose and Campbell portion of this legislation does present certain broad parameters for police conduct, but the police conduct that I think, from my experience as a police officer, is most encountered is the spontaneous moment when someone gives you a credit card and tells you to go and buy a stereo, and it's a stolen or counterfeit credit card. There is no time for judicial authority. At the end of the day, the police are accountable for the damage and loss of property. I think the court of public opinion will keep the police accountable for serious breaches of criminal law that this legislation provides for.

Mr. Greg DelBigio: The decision with respect to reference is a difficult tactical decision. Often facts will assist constitutional litigation. At the very least, though, it would be necessary or appropriate that there be full representation by all groups with interest, a full complement of interveners, in this type of litigation, if it should exist. With respect to the three examples of police immunity, I believe, at least in British Columbia, there is right now a challenge ongoing with respect to the CDSA provisions, but it's still at the trial court level, so at a very early stage of test.

The Chair: Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): As we have discussed, the bill sets up a legislative framework for peace officers to commit offences in investigation. This is a matter of concern for civil libertarians, lawyers, etc. It applies to all criminal investigations—that's one of the main concerns. Would it be feasible or practical to limit these extra powers strictly to investigations of organized crime?

Mr. Mike Niebudek: I don't think so. This is a tool that was used in the past through common law to investigate serious crime as a whole, and limiting this to a certain criminal community, if I can say that, would not serve the public interest, in my view. We believe it should certainly remain targeted as it is in this legislation right now.

[Translation]

Mr. Yves Prud'homme: Mr. Chair, if it were not for this famous case that occurred in April 1999, we would not be discussing the idea of adding a provision regarding immunity, because it already existed, as it still does, for instance, when we are driving a motor vehicle and we intend to stop another vehicle.

There are strict guidelines within police organizations. There are regulations in the Loi sur la police in Quebec. There are constraints and parameters that limit our actions, such as the Quebec Police Code of Ethics, the Police Act in Ontario and other regulations in other Canadian provinces.

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There are currently enough controls to limit the actions of police officers. We think that enumerating them would be quite useless. As one of the members to my left just emphasized, we will simply be helping to screen out or identify those persons who might try to infiltrate one of these groups or to combat them efficiently.

We repeat that police organizations in 2001 are sufficiently transparent, controlled and supervised. We are working in glass showcases, and in my very humble opinion, I think you should not worry about anything, because the law already provides for immunity. We think that it would be an error to define or enumerate them and that such amendments would have no positive effect.

[English]

The Chair: Thank you very much.

I'm anticipating bells here shortly, so Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Are you saying that as a result of the court decision in 1999, in that situation where you're asked to use a stolen credit card to go buy a TV you now can't do that, that you don't have at your disposal the traditional defence of necessity, that prosecutors are going to go around charging police officers who use stolen credit cards to create the impression that, for covert purposes, they're part of the gang? Do you really think that's going to happen?

Insp Mike Ryan: Our concern is not that the police officers will be charged, but that the evidence derived from that conduct will not be admitted into court. That's the problem.

For example, controlled delivery of tobacco smuggled from eastern provinces to British Columbia was derailed because the interpretation given by the RCMP of the Shirose and Campbell decision was that they could not allow the offence to continue once the police knew where the cigarettes were. You could not make a controlled delivery of anything, controlled delivery being where the police intercept and complete the delivery to the suspects. Under the CDSA, the drug offences, you could still make controlled deliveries of drugs. With instances of any other substances, such as tobacco, you could not.

Mr. Bill Blaikie: So that's not a question of immunity so much as getting in the way of the whole plan.

Insp Mike Ryan: It's getting in the way of admitting the evidence into court.

Mr. Bill Blaikie: Okay. I wonder if there is some way we could separate the immunity question from the evidence question. Maybe I don't know enough.

Insp Mike Ryan: It's possible.

The Chair: Okay. The bells are ringing. Mr. Blaikie was the last questioner.

It seems an appropriate time to say thank you very much. We appreciate your being here on very short notice, and we appreciate the coherence of your interventions. Thank you very much.

The meeting is adjourned.