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[Recorded by Electronic Apparatus]

Tuesday, May 15, 2001

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The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon.


Welcome, one and all.


I call to order the 17th meeting of the Standing Committee on Justice and Human Rights. Today we will continue hearing witnesses on Bill C-7, an act to amend the Criminal Code and to make consequential amendments to other acts.

As we discussed earlier today, this afternoon we'll be hearing from officials of the Department of Justice, who we hope will be responding to some of the things we've heard over the last weeks with regard to the so-called organized crime bill. I hope this discussion will inform us in terms of the discussion we had this morning as to whether or not we will to proceed to clause-by-clause consideration of the bill on Thursday of this week or sometime subsequently.

On that note—


Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I raise a point of order, Mr. Chairman.

Two very important briefs have been filed by organizations connected with the law. I'm referring to the Quebec Bar and to a civil liberties association. Would it be possible to ensure that every member receives a copy of these briefs before we start the clause-by-clause study?

I believe we will want to reread these briefs in order to set out our parties' positions, and we should have all of the witnesses' briefs, particularly when they contain recommendations on substantial amendments.


The Chair: I'm advised they were sent to translation upon receipt, and we will distribute them as soon as they're available to us.


Mr. Réal Ménard: Yes, but if they are only available after the clause-by-clause study, we will be no further ahead. I know they will be translated. That is not what I am asking about. I'm wondering if we can ensure their availability before the clause- by-clause study.


The Chair: Understood, Monsieur Ménard, and if I may, I'll confer with my greffier for one moment.

I'm advised that we could have them in the hands of members by Thursday morning. That thoughtful intervention will inform the discussion we'll have after, with regard to when we'll proceed to clause-by-clause.

I turn to the officials of the Department of Justice. Welcome, as always.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chairman.

My name is Yvan Roy. I am with the Department of Justice doing criminal law policy. With me is Mr. Stanley Cohen, one of our foremost experts in constitutional law, both charter and division of powers.

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You will perhaps notice, Mr. Chairman, that behind me is a slew of lawyers, and depending on the questions that come, if there is a need for more explanation than what Stan and I can provide the committee, with your permission I will ask them to join us at the table—but only if there is a need.

The Chair: I don't know how many you're speaking of, but if anybody wants to join, there's room here and I would have no difficulty with that, if that's your wish.

Mr. Yvan Roy: I think we will proceed with my colleagues staying behind, but we will feel very free to bring them to the table whenever there is a need for that.


Mr. Chairman, I felt that it might be useful, at the outset, to make some comments, some remarks on at least three aspects that seemed to have come up several times during the committee's hearings.

The three points I would like to comment on are the following: the use of a legal framework in this bill to respond to the Supreme Court's decision in the Shirose-Campbell case; to deal briefly with the possible broadening of the definition of “justice system participant”; and finally, to say a few words on the offence created in this bill concerning people's involvement in criminal organizations and on the bill's definition of what a criminal organization is.


It is my hope, Mr. Chairman, those three sets of comments will help the committee, but I do not kid myself, I know there will be many more questions than I have comments. Therefore, I will try to limit my comments to perhaps something like seven to ten minutes. Then we will be here to answer all of the questions the committee may have for us. If that's agreeable to you, I will proceed in that fashion.

Thank you, Mr. Chairman.


The issue of the framework chosen to deal with the monitoring of law enforcement activities is one that was at the very heart of the Minister of Justice and the government's concerns in the drafting of this bill. It was obvious early on that we had to know whether or not to proceed with a legislative framework, that is to say that Parliament give peace officers permission directly to commit offences when carrying out investigations, whether to proceed with a more legislative framework, or whether to go forward with a third framework, where the accountability of the minister responsible would be direct and very political.


Of course, you know the government chose to present to this House a model that goes with accountability by the executive, and that accountability is to be through the minister responsible, who needs to make the appointments himself or herself. The definition of a “competent authority” in the bill is quite clear about this; it is to be done by the minister responsible for the police and no one else.

Why is it this choice was made? Well, you heard from witnesses this morning that it is a model that gives the state the kind of flexibility that the state thinks it needs in order to do the job that is required of it. As you heard again from witnesses this morning, as a peace officer, you need to have the flexibility to do some things as they happen, on the spur of the moment. There is simply, Mr. Chairman, no possibility for these people to obtain a judicial authorization, and that is on the practical side of the equation.

On the more theoretical side of the equation, you have the need on the part of the state to have a great deal of respect for the functions of the judiciary. It is felt by the government that it is not part of the role of the judiciary to issue these kinds of warrants. Why? Because the warrants we are asking the judiciary to issue, in cases that exist already in our law, are in respect to situations that are clear, where there are strict parameters, and where the judiciary has, it seems to us, a clear role to play, balancing of interests. But it is with respect to situations where the parameters are quite clear.

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I was comforted, in coming to those hearings and listening to people who are not in favour of the position advanced by the government, to see that they were not able to find one common-law jurisdiction where the same kind of behaviour is to be done on the basis of a warrant issued by a judge, because our research at justice has been incapable of finding any such model in any common-law jurisdiction.

It is, of course, a very perilous task to come before you and argue about the state of the law in the United States, England, Australia, New Zealand, or other common-law jurisdictions. But what we have tried to do is go to those jurisdictions and see how they are operating.

Through our research, which appears to be confirmed, at least to some extent, by the fact the witnesses who appeared before you were not able to show you that there was a model of a judicial nature that has been used elsewhere, I found that in the United States, where you have 51 jurisdictions—criminal law is a jurisdiction at the state level, and then at the federal level they take jurisdiction over some matters—there is not one jurisdiction where there is a judicial model.

In England the issue as to what the state of the law is remains, shall we say, unclear. What we have found is a decision of the House of Lords in 1996 that confronted a problem similar to that in Shirose and Campbell, and the court chose not to decide the issue but rather decide on another point.

In Australia, where they have had court decisions, there is one going back to 1995, a case called Ridgeway. They have chosen to go with a model that is not judicial in nature.

I submit that it is for practical reasons, for theoretical reasons, and also because at the end of the day it is essential that the people who are in charge of law enforcement take their responsibilities.

We have, in our own country, a model we can use, and that model is the regulations that have been passed under the CDSA, the Controlled Drugs and Substances Act, which is not a judicial model.

I submit to you that model has worked perfectly well for the four years it has been in place. Or if it has not worked perfectly well, nothing has come to our attention to make us conclude that it's not working well. Why is this? It is because the state, through its police forces, is taking those powers very seriously and is providing for a very strict framework that is used for the purpose of using the powers that are given.

You heard from Mr. St-Laurent this morning that this is certainly what the MUC is doing, and we believe—and that is what the government is submitting to you, the lawmakers—that it is going to be in the interest of the ministers responsible for those police forces to issue the kinds of directions we have been talking about.

We believe this is the common-law way of doing things. The power is given to someone, the accountability is clearly with someone, and that someone has all the incentives in the world to make sure it is done within the framework, and, I would submit to you, Mr. Chairman, well within the framework.

The second point I would like to bring to your attention is the whole issue of intimidation. You have heard from witnesses, in particular witnesses this morning, that it would be important for them that the definition of “justice system participant”, which is found on page 2 of Bill C-24, be extended to apply to people other than those who are here.

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I would like, Mr. Chairman, to bring to your attention.... Let me start by saying the definition is not, in and of itself, something that is particularly important. You need to go to the offence that is created for the purpose of understanding how broad this can or cannot be. The offence we're talking about is the new offence of intimidation of a justice system participant, which is found at clause 11 of the bill and it would be proposed section 423.1.

What you have here is an offence that is created for the purpose of giving a clear signal that people who intimidate justice system participants could be sent to prison for an extended period of time. Indeed, the bill is talking of a maximum of 14 years.

The offence presently of intimidation is punishable by six months in prison. What the government is proposing in Bill C-24 is that the offence of intimidation be in the future punishable by five years.

So you would start with the offence of intimidation that would clearly apply to everyone and anyone. If you're intimidating someone, you may have to go to prison for up to five years. With respect to the justice participants, what the bill is providing is that this be made punishable by 14 years.

How do you explain that? What is the policy rationale for having five years and 14 years? This is found, Mr. Chairman, in proposed subsection 423.1(1), where the Criminal Code would be saying that the crown would have to prove beyond a reasonable doubt that the offender was doing that “with the intent (a) to provoke a state of fear in a group of persons or the general public in order to impede the administration of justice; or ”—and these are the important words—“(b) to impede the justice participant in the performance of his or her duties.”

When this scheme was considered, the idea was to give this kind of protection to peace officers, prosecutors, judges, prison guards, where it is clear that their duties are bringing them in contact with people as part of the criminal justice system.

When you are talking about a mayor, a councillor, their duties are much broader than simply being part of the criminal justice system. You are, therefore, providing for something that is much broader than what was anticipated or expected.

If you were to tell us in the Department of Justice that you have a clear interest in broadening the scope of this—and my minister, when she appeared before this committee ten days ago, indicated that she was open to that—I would suggest to you that it might be important to try to narrow down a little bit the intent that is required, so that it would be more targeted towards the role that someone is playing in the criminal justice system, and not so broadly as what would be captured with having the juxtaposition of the mayor of a municipality and his or her duties, which go well beyond the criminal justice system. That is point number two.

Point number three, Mr. Chairman, relates to the offence of participation in a criminal organization, which would be found in the new proposed section 467.11 of the Criminal Code. The provisions that are of interest to this committee can be found at page 29 of the bill. This would be clause 27.

There were questions that were raised about the definition of a criminal organization. I would wish, Mr. Chairman, to put on record the definition of a criminal organization that has been adopted by the convention. It is called, just for the record, the Transnational Organized Crime Convention adopted by the United Nations and open for signature as of December of last year.

The definition of a criminal organization, you will have to agree with me, once I put this on the record, is eerily close to the one that is being submitted to you for consideration.

    “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

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I invite you to read the definition that is offered of “criminal organization”. I think you will find just about the very same elements in the definition that is proposed.

One more thing that I need to add to this, Mr. Chairman, is that you may ask yourself what they mean by “structured group”. In the legislation that is presented to you, we are talking about a group that may be formed in whatever manner. Well, the convention goes so far as to say that:

    “Structured group” shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined rules for its members, continuity of its membership or a developed structure;

What this convention is doing is ensuring that there is flexibility in the definition, but also ensuring that when a group is created on the spur of the moment to commit an offence that this kind of group is not captured by our definition. That is important, because two, three, or four youths who decide they're going to break into a house are not a criminal organization. This is not what is meant by the definition, and that is certainly not what is meant by the definition given to that term in international instruments.

Canada is trying to follow the dictates—dictates is too strong a word—the lead taken by the United Nations. We think, Mr. Chairman, that this is going to be helpful in defending the constitutionality of this legislation, because definitions like the one we're using have been adopted elsewhere.

These are the three points I wished to bring to the attention of the committee. I think I've used 12 minutes instead of 10. Now we're ready for questions.

The Chair: Thank you very much. I'm sure you were here today, and 12 minutes isn't that bad, actually.

Mr. Cadman, seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and I won't take anywhere near seven minutes. We don't have many problems to take issue with in a lot of the parts of this bill. I know some of my colleagues have some more serious concerns, so I'll give them the time.

You just went through the definition. We certainly heard testimony, and I'm sure you heard it when you were here before. You used the example of youth—about three kids planning break and enters. People still express concerns that this could be a problem, and they could be targeted. I use an example of senior citizens conspiring to defy court injunctions to block logging roads in B.C. and things like that. I know there are people who fear that it could be extended there. I don't particularly share that fear, but how do we allay those fears that people have?

Mr. Yvan Roy: I would take you to our definition of “criminal organization”—again this is at clause 27 at page 29 of the bill—and remind people who are concerned about this that it is for the crown to show beyond a reasonable doubt that one of the main purposes or one of the main activities of the group is the facilitation or commission of serious offences. A union is not covered by something like this. It may very well be that there may be a cell that is doing that, and that is their main purpose, but the union, certainly not.

Another point that needs to be stressed, Mr. Cadman, is also the fact that it is required under this definition that the likely result of the commission of those offences is the direct or indirect receipt of material benefit. In the case of a group that is picketing, I think it is a stretch to say that they are committing offences for the purpose of getting a material benefit of some sort. Perhaps some people will make that point and say that ultimately they're trying to gain an advantage of some sort in the bargaining that is taking place with their employer and that is what they're trying to do.

I do not believe that this is what is intended. And indeed, by putting on the record comments of that nature, judges in the future may very well be interested in looking at them and interpreting that very provision as narrowly as Parliament wants it to be.

Mr. Chuck Cadman: I'll just mention again and I'll carry that forward with the example of the young people breaking in to steal property to fence for drug money. Again, I don't particularly share that concern, but I know a lot of people do.

Mr. Yvan Roy: Well, I will take you to the third element in that definition, which I think should give you some comfort. It is the last sentence in the definition: “It does not include a group of persons that forms randomly for the immediate commission of a single offence”. I think the three kids you're talking about fall directly in that category. Indeed, those words resemble very much the definition of a criminal organization as per the United Nations convention, which I have just read into the record.

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Again, in order to make sure that people who should not be included are not included, we have tried to stick as best as we could to the definition that exists internationally. I think that by and large we have done a good job of that, but it will be for you to decide.

Mr. Chuck Cadman: Thank you, Mr. Chair.

The Chair: Thank you, Mr. Cadman.

Monsieur Ménard.


Mr. Réal Ménard: I have many questions.

On page 4 of the press release accompanying the bill, the notion of immunity is loosely defined. Should we adopt a broad definition of the concept of immunity and say that in all cases where it is not provided for, for the four offences including assault and bodily harm, if it is a question of offences in the Criminal Code and that immunity is not forbidden, it could apply? Could it be interpreted in this way, first of all?

Secondly, could you speak to the concerns that our colleague the Mayor of Blainville had when he was referring to the possible seizure of a bunker, and just how far do you feel the law will allow us to go as legislators?

Thirdly, what are we to make of the new right that will be created concerning the extension of offence-related property? We have been told that there are 40 other possible offences. Tell us what this would mean if the bill is passed.

I will come back with three further questions.

If I am not being too indiscreet—I know that there should be no secrets between the committee and the Minister of Justice—do you think that the studies you refer to concerning what is happening elsewhere could be given to us? You said—and it is a weighty argument in this discussion—that there is no other common law country with a judicial review framework that proceeds through judicial authorization in order to approve undercover work. It seems to me that it would be interesting to invoke this argument in the debate with people who have some reservations. I see people like this every day.

Mr. Yvan Roy: I took notes regarding the last three questions, but what was the first?

Mr. Réal Ménard: I wanted you to speak to us about immunity. In your press release, you stated that immunity would not apply in a certain number of cases and you gave four examples. Are we then to understand a contrario that it will apply in all other cases and, as soon as there is a criminal investigation, and therefore an offence under the Criminal Code, that this immunity could potentially be authorized by a senior official?

Mr. Yvan Roy: I will answer the first question to start with. The proposed system is basically a three-part system. First of all, there are offences that cannot be committed, regardless of the circumstances. These offences are set out in proposed subclause 25.1(11), which you will find at approximately page 6 of the bill.

These are offences that deal with violation of the sexual integrity of an individual, of offences causing a person's death, of offences causing someone bodily harm and of offences dealing with the orderly administration of justice.

The second level of offences includes offences that could be committed by police officers. Therefore, we are not talking about public officials, but people who are acting on behalf of the State, without having that duty. They are in essence informers. When there is destruction of property, the legislation states that peace officers who are there to commit such an offence or to direct the activities of a person who could commit such an offence, must have obtained the authorization of an officer who would himself have been personally designated by the minister responsible. You, the peace officers, if you intend to commit this offence or if you are there to direct the activities of a person who could commit this offence, you must obtain the authorization of a senior official, who himself would be designated by the minister responsible personally. That is the second category.

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The third category, and you are quite right, are the other offences in Canadian criminal law which can be committed only when the commission of such an offence satisfies the proportionality test in accordance with the law. You cannot commit an offence because it is more convenient to do so. You cannot commit an offence that is more serious than the offence you are investigating. There has to be some form of proportionality. It has to be reasonable and proportional in the circumstances.

Mr. Réal Ménard: Where does this proportionality test come from? Is it set out in the legislation?

Mr. Yvan Roy: It is set out in the legislation.

Mr. Réal Ménard: What does that mean in practical terms?

Mr. Yvan Roy: I would invite you to take note of the proposed subsection 25.1(8), which is on page 5. A public officer is justified in committing an act or omission if:

      (c) he believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard...

And then certain factors are set out. If the peace officer, the public officer cannot meet the proportionality test, he or she has committed an offence.

Mr. Réal Ménard: It is a good marker.

Mr. Yvan Roy: The same criteria must be applied and satisfied for the senior official. In fact, the senior official cannot turn a blind eye and tell himself that the lower level official needed to commit this offence. He himself must be satisfied of the proportionality.

You heard Mr. Saint-Laurent say this morning that there could be very serious consequences to this criteria not being met. Not only would you face criminal charges, but you would lose your job.

Mr. Réal Ménard: Can people lose their jobs if the court so decides, or would this be required by the police ethics body?

Mr. Yvan Roy: It could be both. Usually, the two processes can operate simultaneously. This was decided by the Supreme Court in Wigglesworth.

We should remember that the minister responsible can impose conditions on the designations made. The act provides for this specifically. I would refer to you subclause (7) of clause 25.1.

    (7) A designation under subsection (3) or (6) may be made subject to conditions.

These designations may be for a certain length of time. The minister could establish designations for some offences only or tell police officers that they cannot commit certain other offences, which would be at a level below those already prohibited under the act.

So, in our view, this is a very regimented system.

Mr. Réal Ménard: But with respect to which...


The Chair: Monsieur Ménard, we have a lot of time.

Mr. Réal Ménard: I'll come back to this.

The Chair: We'll be back. That's right.

Mr. Owen.

Mr. Réal Ménard: Thank you, Mr. Chairman.

The Chair: You're welcome, Monsieur Ménard.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Mr. Chair, and thank you to the officials and all their colleagues.

Thank you very much for the great thought and detail that has obviously been put into this draft, which has been expedited in the face of the threat that organized crime clearly poses to our society.

A lot of the concern that we've been hearing from members of the private bar, from law associations, and from civil liberties associations has been around the very broad nature of the language.

Monsieur Roy, you've properly described this as providing maximum or a lot of flexibility. That was one of the intentions of the wording. Yet as well, an underlying theme, of course, of the legislation is accountability. There is a potential, I suppose, without clear definition, for flexibility to inhibit the full exercise of accountability. The proposed subsection on principle, subsection 25.1(2), very properly states the principle of the rule of law and states that people involved in law enforcement must act within it. That's of course paramount.

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A fundamental tenet of the rule of law, of course, is that laws are certain. Between flexibility and the clear desire for or intention of accountability, there is this potential for uncertainty. I think some of the disquiet we're hearing results from people's imagination of the worst possible application, in albeit limited circumstances, of the power that's to be passed under this legislation.

I'm sure, as you've said, that the intention is to set conditions, to create standards. We've heard from the Montreal police this morning of the intention to provide training for designated persons and of the strict accountability mechanisms to be worked out.

I'm wondering if the public disquiet, at least to the extent that we're hearing it or we might imagine it's out there, might be assisted by some clear statements of the types of conditions, the types of activities and oversight and reporting that is anticipated by this. Frankly, as we hear concerns expressed and then hear explanations given, the explanations join the issue quite effectively and answer it, yet the bare act presents itself as a broad sweep.

The drafters, the people working in the system, may well understand the restrictions that will be applied and the regulations, standards, policies, practices, and whatever else that will be implemented. I wonder if there is some way that we can telegraph that a little more effectively while still conforming to the necessarily broad wording in a statute.

Mr. Yvan Roy: As I've already alluded to, Mr. Owen, it is already in the legislation, where proposed subsection 25.1(7) provides specifically for the ability for designations. I don't think it would be required, quite frankly. I think the minister can make that decision without the legislation saying so, but it says that a designation “may be made subject to conditions”.

Are you suggesting that it might be a good idea for the government to spell out a little more what those conditions could be? With respect to what they could be, I don't know, could it be limitations as to time, limitations as to the types of investigations for which the designation would be valid, limitations as to the offences that could be committed so that, again, the minister responsible would be even more accountable? If we go too much in that direction, I think there is a basic tension that exists between the accountability of the minister and getting involved too much in the operations of the police force.

I don't think Parliament would want ministers to be in a position, say, to determine who should be the targets or how investigations should be conducted. There is that basic tension for which we're trying to find a compromise.

Mr. Stephen Owen: Yes, I agree with that. That tension is necessary.

This is for your opinion, not a suggestion from me, but I would like your opinion as to the appropriateness of putting in legislation something like this: that the minister shall by regulation set standard conditions or standards of accountability for the designation or selection or appointment of officers operating under this clause, something about their reporting, something about the details of the training oversight reporting. Then, at least for the public reading it, there would be a clear indication that there are to be these general standards and the minister in being accountable will be accountable to something a little more specific than just “may” issue conditions, as in proposed subsection 25.1(7).

Mr. Cohen?

Mr. Stanley Cohen (Senior General Counsel, Human Rights Law Section, Department of Justice): I wonder if I might address some of your more general points about the breadth of the legislation, because I think there is an issue in communication as well, as to whether or not the legislation, and this particular part of the legislation especially, is as broad and as vague as some of the critics might suggest.

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From my perspective, I'm supposed to examine these issues from a constitutional perspective so I'm looking at it through the lens of what might be called vagueness or over-breadth in terms of constitutional law.

As I see it, the legislation may be considered by courts in future to be sufficiently precise and constitutional because of a number of reasons. One of them is that the exemptions from liability are provided for by statute. In other words, they're putting into law the fact that the police have this authority. Therefore, in essence, by enacting this legislation you are bringing the police activity under the umbrella of the rule of law.

That's an important basic point. We're not talking here about the police breaking the law once you've enacted this. We're talking about essentially acting within the law. The police have many powers that go beyond those of ordinary citizens. If the police exercised those powers and they didn't have the authority, then they would be breaking the law, but since they do have the grant of authority from the statute, they are acting within the rule of law. That's a very important point.

Secondly, the exemptions from liability are not cast in a general way, but they're not unbounded. There are in fact three different categories of activity that are precise and identifiable. You have those that are prohibited absolutely, those that are permitted without oversight but are subject to a proportionality assessment, and those that require prior authorization. There again you have a structuring within the legislation, what the courts call tailoring of the legislation to the severity of the conduct or misconduct, if you will, that is involved.

That again becomes a very important consideration as to whether or not we are talking about something that is over-broad or something that is so vague and so general as to give, as some would say, carte blanche to the police to act. We have basically tried as much as possible considering the nature of the subject matter to bring this within acceptable parameters.

In addition, in the background, as you have discussed here, there are accountability provisions and requirements that basically confine and structure enforcement discretion, so that when a senior police officer is involved here, we basically have some form in terms of general accountability principles of how police activity on the street is actually being, in the words of the jurisprudence, confined, structured and checked. Basically it's important to bear in mind that this scheme is operating in a way that's consonant with basic theoretical concerns.

The last point I'd like to make is that the measures are created with as much precision as is compatible with the nature of the subject matter. In the leading case on vagueness in the Supreme Court of Canada, you have the court saying, and this is the Nova Scotia Pharmaceutical Society case:

    The courts must be wary of using the doctrine of vagueness to prevent or impede state action and furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject matter does not lend itself.

Now, if you accept the basic premise, as a majority of the witnesses that I have heard have put forward, that Campbell and Shirose basically denuded the police, took away a power at common law that they had assumed they had before the McDonald commission and indeed after it, then it becomes necessary to enact legislation in order to replace that and to give some structure to what they feel they have lost.

There is a history to this that we can discuss as we go on this afternoon, but I'm not winging this or making it up as I go along. There were legal opinions tendered at the time that McDonald filed his report that basically took a contrary view and they were by eminent jurists within Canadian society. It was not a matter that really came to the fore in our jurisprudence until Campbell and Shirose actually came before the courts here.

The Chair: Thank you very much.

Mr. Stephen Owen: Thank you. That's helpful. I think you're right. I think it may well be a communication issue, but it may be one that we want to give public confidence through.

The Chair: Thank you, Mr. Owen. Thank you, Mr. Cohen.

Mr. Spencer.

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Mr. Larry Spencer (Regina—Lumsden—Lake Centre, Canadian Alliance): Thank you.

I've questioned some other witnesses before, and I'm concerned. I'm glad we're giving the opportunity for the police to have these tools. And I'm glad to hear about the accountability that you say they have.

While we're making these changes to the Criminal Code and while we're in this process, I'm also interested to know why we would not also protect the ordinary citizen out there who might sustain some property damage in some of these actions. I understand that is covered provincially in most cases, but wouldn't it improve this legislation if that were a national standard?

Mr. Yvan Roy: Right now, when law enforcement agencies happen to cause damage to innocent third parties they compensate these people through what we call in our jargon an ex gratia payment—that is, you tell us how much damage has been caused and usually we pay the exact amount required.

If you try to create something like this by legislation, it is not altogether clear how that can be done at the federal level. If it can be done, it is unclear whether or not this can be limited, by legislation, only to the innocent third parties.

So the minister in consideration of this bill was satisfied that the current regime that applies, by and large, throughout the country is the better way to go. So when innocent third parties have been affected in some fashion or another it is through that kind of payment that this is done, instead of trying to create some sort of civil liability that then must be extended throughout.... We would think that would cause some problems down the line.

Mr. Stanley Cohen: It seems to me that the issue of compensation is an aspect of both justice to victims and also an issue of accountability within the scheme. It should not be lost sight of that there are a number of mechanisms that will not be affected by this for ensuring accountability and in some sense for ensuring some recourse for victims.

In the first place, the police can still be charged with an offence if they go beyond the authority that is properly attributed to them. Secondly, there exist within all provinces, although I stand to be corrected on that, schemes for the compensation of victims of crimes. Again, that would address issues of excessive authority. Thirdly, there are avenues allowing for civil liability for tortious or abusive conduct, again, where the police exceed their authority. There's no doubt the individual would still have the right to sue for some recourse if that were the case.

There remains the Constitution. The constitutional remedies are in some sense terra incognita. We don't know exactly what the full breadth of constitutional remedies are that might be granted by a court in a particular case. The common law provides some remedies for abuse of process. Officers remain liable to internal discipline for unprofessional behaviour and other misconduct. Police and public complaints mechanisms and procedures are available in appropriate cases.

All of that feeds into the ex gratia payment considerations that Mr. Roy has already detailed for you. They are part of what we would call a rather large scheme of accountability. And I would remind the committee that for all of the occasional bad press that the police get in instances of abuse or misconduct, they are one of the most overseen, if not the most overseen, institution in society. They have levels of oversight internally and externally at all levels throughout the country.

Mr. Larry Spencer: Perhaps I watch too much American TV and hear too many horror stories from there, but I'm also concerned—

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The Chair: Mr. Spencer, we'll be back.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

I was going through your points in reverse order on the offence of participation. I appreciate your effort to build the record on that point. I think that knowing this is an international convention and it parallels an international convention is a good idea.

On the issue of expanding the list on the intimidation, I can certainly be persuaded that a provincial attorney general, a provincial solicitor general should be added to the list. That seems to make sense to me. A blanket extension to all politicians of all kinds at all times seems to me to be getting away from the sense of participation.

On the point of what you didn't pick up, it came up in this morning's testimony. One of the things we heard about on the subcommittee was the enormous amount of difficulty the police have on the mounds and mounds of evidence. I don't quite know why we didn't take this opportunity to amend the Canada Evidence Act so that evidence could be submitted in an electronic format. I'd be interested in your comments on that.

Similarly, you didn't take the opportunity to pick up recommendation 10 of the subcommittee, which is the reverse onus recommendation so that those who have assets that have been seized have the reverse onus to to get them back, in effect. I would be interested in your comments on that.

The main issue I'm interested in is the Campbell and Shirose case. It came up in the police officer's testimony this morning, and I'm hard pressed to know what the difference is here. The example he was using was a police officer stealing a car. Certainly pre-Campbell and Shirose there was a legal regime in place where he could steal a car. Post-Campbell and Shirose there still appears to be a legal regime in place that he can steal a car.

In terms of actual substantive law, if you take the statutory scheme out of it, I can't quite see what protections are afforded to police officers now that are not presently in place. I'd appreciate if you could expand on that point.

Mr. Stanley Cohen: I've been invited to start.

It seems to me that the Campbell and Shirose case, as one of the witnesses this morning pointed out, was all about the rule of law. The police, as all citizens, must situate themselves within the rule of law, essentially, in order not to be regarded as lawbreakers.

I think this is what has happened in the wake of Campbell and Shirose from the testimony I've heard and from the discussions we've had leading up to the introduction of this legislation. After Campbell and Shirose was handed down police organizations across the country essentially shut down large portions of their shop. They were not certain that what they were doing was in compliance with the law, since they had lost the central pillar that supported their position. The central pillar was the common law.

Mr. John McKay: Are you satisfied that is a correct interpretation? The police idea is that they somehow or another have lost something with Campbell and Shirose. Perhaps they have, but I have yet to hear the legal case made that they have in fact lost.

Mr. Stanley Cohen: The case that the police were basing their position on essentially was the Waterfield case, which comes out of the English courts. That case basically established an unremarkable proposition that the police have common-law powers to protect society and preserve the peace.

From that has been built a notion, and this came before the McDonald commission as well, that the police had essentially certain ancillary powers based upon the common-law duties they were charged with. These powers allowed them to do certain things with immunity, because they were, in good faith, discharged of their basic responsibilities.

After Campbell and Shirose came out it was apparent that they could not rely upon Waterfield over the authority of the Supreme Court of Canada.

• 1625

Waterfield had been used by the Supreme Court in other circumstances—for emergencies, for example—but it clearly no longer appeared to be the basic foundation upon which the police could rely. Therefore, we had the invitation from the Supreme Court of Canada in Campbell and Shirose to enact legislation bringing police conduct within, as I called it, the umbrella of the rule of law.

The Chair: Thank you very much.

Mr. Roy, do you want to take the...?

Mr. Yvan Roy: With all due respect, the way the court chose to address the issue in Shirose and Campbell does not leave much room for any contrary argument, Mr. McKay. Indeed, the court went so far as to say on a couple of occasions—this is what I was checking in the decision itself—that it is actually up to Parliament to determine where the lines should be in deciding for society when it is appropriate for the state to break the law in the pursuit of the greater good—to catch people who have committed offences. This is stated on two occasions, and I can refer the committee to the paragraphs, if need be.

So the unanimous position of the attorneys general in this country is that the decision in Shirose and Campbell means there is no longer any defence to a charge that you as a policeman have committed an offence. Waterfield does not apply, and the court said specifically you cannot plead that you did not have the mens rea.

Basically, in the view of the Supreme Court, the police were confusing two things: the intention to commit the offence with the motivation to commit it. The police were saying that they commit these offences, but they mean well. The court says sorry, your motivation for committing offences—whatever you may mean to do—is irrelevant; you are committing the offence. If it comes to this conclusion—police are committing offences—how can they feel justified as law enforcement agents in continuing to commit offences? How should the courts react to this?

The courts would have to find these people guilty of their offences. Indeed, following the decision of the Supreme Court of Canada, in a number of cases it should be considered an abuse of the process on the part of the state when in trying to charge someone with an offence, offences are committed.

This scheme says a law enforcement agent is not committing an offence but is acting within the parameters of the law. It's the same as acting in self-defence. When acting in self-defence, the law recognizes that sure, a person killed someone; sure, this killing was intentional, and in other circumstances, it would be a murder; but because of how it took place, the circumstances giving rise to self-defence argument, this “killer” is entitled to an acquittal.

This piece of legislation is all about this, because the police have nowhere to go without a scheme telling them in law they have a right to do this. It would be a misuse of prosecutorial discretion to use it here, because it is the duty of the state to prosecute cases when an offence has been committed.

Actually there is some good case law referred to by the Supreme Court in Shirose and Campbell to the effect that it is inappropriate for the state to decide it's not going to enforce laws against some offences, or against a category of individuals. If you do this, you may find yourself in trouble with the courts. You need to have a regime of some kind. On a couple of occasions the court invited this to be done by Parliament, and that is the bill before you.

The Chair: Thank you very much.

Mr. Ménard.

Mr. John McKay: I asked four questions, and I've had one answered, but that's fair, okay.


Mr. Réal Ménard: Could you tell us what the situation is regarding the second question on offence-related property and the Mayor of Blainville?

Mr. Yvan Roy: Before Bill C-95 in 1997, there was no provision in our law to confiscate offence-related property, which, in more colloquial language could be called the things you use in the commission of an offence,


the things you're using in the commission of an offence.


There were some exceptions to what I am saying, but generally speaking, the instruments of crime were not covered.

When Bill C-95 was passed by Parliament in 1997, it decided to enable the government to confiscate things used in the commission of an offence, provided they were not real estate.

• 1630

That said, Parliament also said that it was going to establish an exception to this prohibition on confiscating real property essentially in the case of a property described as a “bunker”, that is a property that was fortified for the purpose of assisting in the commission of offences. That was the definition we had at the time in the Criminal Code, and it still stands. It is included in the bill, on the right-hand side of the page under “offence-related property” and, in French, “bien infractionnel”. It states:

    ... but does not include real property, other than real property built or significantly modified for the purpose of facilitating the commission of a criminal organization offence;

That is in reference to the bunker. This provision made it possible to confiscate some of these bunkers. However, it must be understood that in order for it to be offence-related property, the property must have been used in the commission of offences. The bill redefines offence-related property to eliminate this restriction regarding real property.

So, whether the real property was fortified or not, it may be confiscated to the extent that it was used in the commission of an offence. If the real property was not used in the commission of an offence, the bill does not permit its confiscation.

We think that going beyond what is here would get us into an area of provincial jurisdiction—namely the steps that can be taken by a municipality, through a by-law to decide on its zoning. A municipality can pass a zoning by-law stating that it does not want a particular type of real property in a particular part of the city. In our view, this is a provincial power.

In fact, this opinion seems to be shared by the provinces, because, in the work preceding the bill before you, we worked closely with the provinces. One the projects that remains to be studied is the possibility of extending the scope of the type of by-law that was passed, while acknowledging the fact that this is an area of provincial jurisdiction.


The Chair: Has he answered both of the questions you put?


Mr. Réal Ménard: As I am sure you recalled, I did ask three questions. So one remains unanswered.


The Chair: Okay. Remember which one it is, Monsieur Ménard.

Madame Allard.


Ms. Carole-Marie Allard (Laval East, Lib.): Thank you for being here, Mr. Roy and Mr. Cohen.

Am I correct in thinking that the wording of proposed clause 25.1, which relies heavily on the competent authority, means that there will be a sort of sword of Damoclès hanging over the Solicitor General's head once this bill is passed?

I would also like to know whether there is any precedent in any other legislation giving a broader mandate to peace officers. If so, were there any hitches in enforcing this broader mandate?

Mr. Yvan Roy: I am not sure I follow the second part of your question. May I try to answer the first part, or perhaps you would like to give me some clarification right away?

Ms. Carole-Marie Allard: Is there not a bill on drugs that gives the police broader powers? Have there been any hitches in enforcing this act since 1999?

Mr. Yvan Roy: I follow you. Thank you for the question.

I will start with the second part. It is true that some regulations were passed in 1997 which establish a much less strict principle of accountability than the one proposed in Bill C-24. The other legislation allows the Solicitor General to designate a police force, and, from that time on, the police force can take actions that would make it guilty of certain offences under the drugs legislation, merely by meeting the conditions set out in the regulations, without any strict principle of accountability of the type we are discussing here. In other words, the Solicitor General would designate individuals by name, and the Solicitor General would be called upon to establish certain conditions in the use of certain powers, and there would be a proportionality test similar to the one proposed in this bill.

• 1635

As compared to the other precedents in Canada, we think the ministerial accountability imposed by this bill goes much beyond that contained in the drugs regulations to which you kindly referred.

Is this too much in terms of accountability? You are asking me to make a value judgement, which is not something a lawyer should do. I think that ultimately, it is up to parliamentarians to make this decision. Moreover, I think that in this decision, you would have to weigh various interests, as Mr. Owen was saying. A regime such as this gives considerable powers to peace officers. It may be appropriate to have an equivalent degree of accountability. If that requires that the Solicitor General apply this discretion to the process, then so be it. I think these are value judgements that you must make, and that I am not able to make.


The Chair: Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): To follow up on what has just been said, are you suggesting that this framework in not one of the things before us is this legislation? As you say, it's a political decision as to whether or not there should be the framework, but you're implying that the framework isn't there at the moment.

Mr. Yvan Roy: With all due respect, I don't think that's what I'm saying. You have here a strong accountability framework.

Under the legislation, as we have pointed out more than once already, it is possibile for the Solicitor General or the minister responsible—because it will not always be the Solicitor General—to have some conditions imposed on those who will be exercising this.

As for the political accountability, let me put it this way. If I were the Solicitor General, I would want to make sure the people I designate to do this job are doing a proper job, because my political life is on the line. If something happens—there is a problem down the line—the media, the opposition, the Canadian public are going to be asking, “What did you do? How did you give these people that power?” I want to be in a position to say here are the measures I have taken.

I'm not going into the investigation to check up on what the police are doing—that is not appropriate for a minister—but here is what I have been doing. We have provided training. I have picked the best people to do the job using the following criteria, and I am accountable for what we have done: we have done a good job. Something bad may have happened where proper measures weren't taken, but I have taken these measures ahead of time.

If those solicitors general are simply saying they're going to appoint anyone presented to them, I'm afraid down the line they may face a significant problem politically, when or if something bad happens. It is in their best interests—and they should see that as an incentive—to provide the framework we're talking about.

Mr. Bill Blaikie: I'd like to go back to something Mr. Cohen said about Campbell and Shirose.

Not to put it in too negative a light, but it sounds as if police in Canada collectively have said after the Supreme Court judgment on Campbell and Shirose.... You said “while they were shutting down their shops”—to use your own phrase—“across the country...”. Is it fair to say that what the government is responding to here is basically a kind of...? The police are saying they don't feel they are protected as much as they used to be, so they're putting down their tools and walking off the job, or boycotting specific kinds of police operations they used to do, because they don't feel they have the protection—thanks to the Supreme Court. Now they don't have the protection they once had, and until they get it back, we can fight crime by ourselves, thank you very much.

• 1640

Mr. Stanley Cohen: I can only attempt to answer this question based on my own impressions. But I understand there to be a very real fear among the police that they've been left unprotected. It's not a job action situation where they're simply trying to—

Mr. Bill Blaikie: Not technically speaking, it isn't.

Mr. Stanley Cohen: —apply pressure against the government. Rather, it's a situation where they have felt that it's not enough to send people out into the field and suggest that the best we can offer them is the fact that it's unlikely they'll be prosecuted.

Even if prosecutors decide not to prosecute the police and even if police forces decide not to charge members within their own ranks with criminal misconduct, it's open to any citizen in the country to lay an information and therefore start the process that can lead to a charge against these individuals. They have reason to be concerned. It's not without precedent for the police to be charged privately.

That in turn creates its own political dynamic, because once a private prosecution is started, the attorneys general within the country have the responsibility to oversee the conduct of the entire prosecution system. While they do on occasion intervene and stay proceedings that have been brought by ordinary citizens, they do so advisedly because it can become a matter of public controversy, and it is again subject to political accountability.

My impression, based upon what I've heard, is that this is simply a situation where a judgment has been made—from those we've heard from—that they will not go forward in situations where they don't feel as if they are legally protected.

The Chair: Yvan Roy.

Mr. Yvan Roy: To my way of thinking it goes beyond that. There is the whole issue of the rule of law we need to consider here. Let me quote to you the first sentence in the Shirose and Campbell decision:

    In this appeal the Court is asked to consider some implications of the constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land.

Having decided that you are not protected by the law as it stands now, the court has said on a couple of occasions that Parliament should decide what the parameters are.

If I am a law enforcement officer, I see no reason whatsoever why I should put my integrity on the line. Morally speaking, I would go even further and say that a peace officer does not have the right to do that because he's going against the law.

It should be the role of the Attorney General to prosecute those cases. Why would I decide, as a prosecutor, that I'm not going to prosecute a police officer who has broken the law? Why?

It seems to me that you as parliamentarians need to consider whether the lines are appropriate, but you need to have a regime in place to allow these people to do the job we're asking them to do. That was what Chief Fantino was putting to you, and I think that Chief Fantino was right in putting it in that fashion.

The Chair: Thank you, Mr. Roy.

We'll have Mr. Cotler and then go back to Mr. MacKay.

Mr. Irwin Cotler (Mount Royal, Lib.): Yes. I have two questions, one for Mr. Roy and then one for Mr. Cohen.

The first question has to do with the definition of a criminal organization. As you stated, it is close to the definition to be found in the international convention regarding transnational crime. Was there any reason this was not specifically stated in the legislation, namely that this particular provision is intended to implement the definition in the international convention? For example, when we enacted the Crimes Against Humanity and War Crimes Act, we stated that the definitions of war crimes and crimes against humanity were to be those of the International Criminal Court.

In other words, why not give some direction to the court by putting in our domestic legislation that it is intended to implement the definition of a criminal organization set forth in the international treaty?

Mr. Yvan Roy: Well, Professor Cotler, I don't know that we have elsewhere in the code—I could be corrected—a statement to the effect that we are basically implementing what an international convention has already established.

• 1645

Our goal was rather to come before a committee like yours, Mr. Chairman, and to put this very fact on the record so it could be used in the future. We think that by our having made the statement we have made today, it has been put on the record and will be used later on in the defence of those provisions, when we have to do that in front of our courts.

Mr. Irwin Cotler: Okay. Now that you've put it on the record, I have another question. As I understand that convention, it does not include the word “facilitate” with “the commission”, and there is reference only to “the commission” of an offence. Bill C-24 seems to broaden the definition set out in the international treaty by including the word “facilitate” rather than just restricting it to “commit”.

Mr. Yvan Roy: You're certainly right that the convention does not talk in terms of facilitating. However, when you go to article 5 of that convention, which is the article that requires that the state parties criminalize the participation in an organized criminal group, you will see that one of the types of behaviour that ought to be prohibited reads like this:

    Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in...other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim.

Basically, the way I understand it, what is being suggested is that you target the potential for criminality by these organizations. That is what we are trying to do with our proposed section 467.11, without requiring that as a predicate you have the commission of an offence, which is what we have right now in section 467.1. Section 467.1, the way it is framed presently, says that if you're committing an offence punishable by five years and you're doing that through your association with a criminal organization, that offence is not punishable under subsection 467.14. This is not what proposed subsection 467.11 says. It says that when you do something with a very specific intent, namely to help that organization in its general behaviour of criminality, even if you're not a member, you are committing an offence. We think that this is in line—not word for word the same, but in line—with what is the international convention is talking about.

Mr. Irwin Cotler: Okay. I have a question now for Mr. Cohen.

You explained that for police powers—because this is very much a police powers act—the structure is based on the principle of tailoring. As I understand it, there are three issues here: one, there are certain offences that are impermissible and could never be committed; two, there are those that can be committed under the principle of reasonableness and proportionality; and then comes, as I understood it, the question of authorization. That would be in proposed subsection 25.1(9).

I'm wondering about something that may fall between two stools. Proposed subsection 25.1(9) speaks about authorization for an offence that would be “likely to result in loss of or serious damage to property”. The inference I get from that is that authorization would not be required if the individual officer believed that it was possible but not likely for his action to result in loss of or damage to property or that there might be damage but it wouldn't be serious. My question is, with that kind of differential threshold, does the other “reasonable and proportional principle” kick in?

Mr. Stanley Cohen: I'm not quite sure where to begin with the question. You're asking me whether the reasonableness and proportionality aspect of the legislation is applicable to judgments that are made with respect to the particular acts police officers commit under this umbrella. Yes, reasonableness and proportionality apply to all the activities an officer undertakes, regardless of whether you're in one category or another. To that extent, it is tailored or regulated.

If you're asking something beyond that, as to whether or not a particular form of misconduct is captured, that's an issue of statutory interpretation, which, if the legislation is not exactly precise, will have to be determined in the case law.

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I would rather have Mr. Roy, as it is a matter of policy, address that particular aspect of your question. It's not a matter of constitutional law, it's a matter of the construction we place on the legislation as you've presented it. Am I missing something in your question?

Mr. Irwin Cotler: No. There is the policy dimension. Suppose I'm a police officer and I determine that the commission of an offence is not likely to result in loss or serious damage to property, for which I would need the express authorization required by proposed subsection 25.1(9), but I believe that it is possible that it will result in loss or serious damage to property.

Mr. Yvan Roy: I wonder if the difficulty is not resolved by simply referring to what constitutes an offence. If it's only possible that something is going to happen, it may very well be that all we're talking about here is an accident and there is no offence committed. So you need an authorization when there is commission of an offence that will result in the destruction of property.

Take, for instance, the offence of mischief. When you look at the definition of the crime, it simply says that everyone commits mischief who wilfully destroys, and that is what this is trying to address here. The police, for some reason or another, feel they have to destroy or cause damage to some property, say use a screwdriver and scratch a car, just to show that they're tough. If you're going to be doing something like this, you need to have some authorization. You know you're going to be destroying or damaging that property, and that is wilful on your part. You are committing the offence of mischief.

If, on the other hand, it is something that may happen, then unless it is criminal negligence that is considered, there is a very good chance, in my view, that no offence is committed. Therefore, there is no need to have an authorization like this. The authorization is only when you plan to commit an offence, so that your behaviour must be wilful in some fashion or other—either wilful or reckless.

Mr. Irwin Cotler: If it is wilful—

The Chair: Thank you.

Mr. Irwin Cotler: Okay.

The Chair: We'll be back. We get an hour.

Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I'd like to pursue Mr. Cotler's line of questioning. It very much has to do with the circumstances police officers find themselves in and the act they choose to deal with in those circumstances. My concern is that what we're going to have evolving in this country is two classes of police, those who are designated as permitted to respond in kind when necessary with some level of immunity, up to certain limitations, and the rest, who, based on Campbell and Shirose, are still able to respond proportionately in the circumstances. All of that is going to be examined after the fact in a sterile courtroom.

I have a couple of practical questions. These designations seem to be undefined. They're not limited. They have to come back and report, obviously, on various occasions. How many police are we looking at designating with these special powers? Is there going to be a different level of immunity for municipal, regional, and RCMP forces, or is it going to be one level of immunity that would apply?

There's going to be, I suggest, an incredible amount of training that will go into ensuring that police officers know the limitations. I think most of them enter into this new designation in a very serious way. How has the department contemplated that this will evolve in regard to this split, in regard to police powers that now exist? There will be those designated, deputized, deemed to have these special powers, and those who still have to operate in a confusing atmosphere, I suspect. If Campbell and Shirose has resulted in this legislation and this designation, what about everyone else who still enjoys normal police powers—and what are those normal police powers?

• 1655

Mr. Yvan Roy: The principle that governs here is the political accountability of the minister who is making that determination. If you had a solicitor general at the federal level who was comfortable with giving that power to the 15,000 RCMP men and women, the legislation would not stop him doing that.

Mr. Peter MacKay: But has that been discussed in the context of this legislation, how many of our national police force would be designated, even in proportionate terms? Thirty percent? Fifteen percent?

Mr. Yvan Roy: I'm afraid I'm not the right witness to answer that question. It certainly has been discussed with the Solicitor General and his representatives. It would be intended to limit it to people who actually need that power. After all, it is in the best interests of the Solicitor General to appoint only those who need it, and then those who will have received the appropriate training, understanding what are the limits of their powers. But whether we're talking about ten, twenty, hundreds, thousands, I wouldn't be able to tell you.

Mr. Peter MacKay: Who can?

Mr. Yvan Roy: The same thing is true—if I may, and it's going to be very short—at the provincial level, because again it is the provincial minister responsible for policing who will have that responsibility. It is a responsibility and accountability that is political in nature.

Mr. Peter MacKay: I'd like to know who could give us that estimate, but further to that, let's consider this issue of political accountability. How will that work if we don't know the duration of this designation? If a person was designated four years ago as permitted to use these special powers or be granted immunity in certain circumstances, that accountability attaches personally—that's the word used in this legislation—to that minister. That minister may have moved on. They may have been shuffled, they may have been defeated, they may have been appointed. What level of accountability will there really be years after the fact?

Mr. Yvan Roy: Mr. Chairman, the way I understand ministerial accountability in this country, you are accountable for what is taking place while you're in the seat.

Mr. Peter MacKay: Right.

Mr. Yvan Roy: If the person has been appointed by the Prime Minister, you still continue to be accountable for what has taken place. One would think that ministers, when they are newly appointed, would want to review, at least to some extent, what is already in their portfolio, including how many people have got that kind of designation.

Mr. Peter MacKay: Finally, on duration, Mr. Roy, I know there are review provisions, but is it that you will be given these special powers for five years, or until further notice? Is that how it works?

Mr. Yvan Roy: Right now what you have in the legislation is a signal that conditions can be imposed. We have been talking about proposed subsection 25.1(7). I think some suggestions have been made that this be expanded. Some would want it more than others, but at the very least they suggest that matters of duration, types of investigations, and types of offences that could be committed by people in those circumstances could be part of the condition, and that a signal to that effect could be given by legislation. We would probably then be taking about amending this subsection to give that kind of signal.

The Chair: Thank you very much, Mr. MacKay, Mr. Roy.

Mr. Grose.

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

Is it allowable for these special powers to be given retroactively? Is it desirable for that to be allowed after the fact?

Mr. Yvan Roy: I don't think so. Either you have the right at the time you're doing something or not. To make this retroactive, in respect of policy, sounds to me like an abuse, quite frankly. Perhaps on the constitutional front there are also some limitations or things to think about as a matter of policy. It's like saying whatever you have done in the past when you were breaking the law, we're saying you can come out clean. I'm not sure this is the kind of thing that would be appropriate, especially when I'm putting this at the level of the rule of law. Either you're doing this within the framework of the law or you're not. If you were not doing that at the time, my preference would be to say you were in contravention of the law instead of retroactively saying you're doing fine.

• 1700

Mr. Ivan Grose: I'm thinking of the police officer who stumbles on something inadvertently. What does he do, back off because he doesn't have that special permission? What proportion of them are going to have these powers? How long do they last? It seems terribly cumbersome somehow. I'm afraid that is what is going to happen, that it will be given retroactively.

Mr. Ivan Roy: If this is not in legislation, the rule in our law is that the provision is then prospective. It has to be contemplated and put in the legislation. That's certainly not the case. Again, my own advice to you would be don't do something like this, not when you've put everything at the level of the rule of law.

Mr. Cohen, do you want to add something?

Mr. Stanley Cohen: I have very little to add to that. I think there is a general reluctance to enact retroactive legislation, and when it affects substantive as opposed to procedural requirements, it runs the risk of engaging the charter. I wouldn't want to go any further than that.

Mr. Ivan Grose: Thank you.

The Chair: Thank you very much. Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Going back to the definition of criminal organization, there was a concern expressed to me by a prior witness, I believe it was the people from B.C., that there should be some kind of wording to define three or more anywhere. The example that was used was a container ship coming into Vancouver, Halifax, Montreal, whatever, carrying contraband drugs, human cargo. The crew is unaware of it. The only person who is aware of anything is the captain on the bridge. Everybody knows there is organized crime involved, but the rest of the participants are offshore. Their fear is that they wouldn't be subject to this particular legislation because the other two, who would constitute the organization, are offshore and not in Canada. Is that a valid concern?

Mr. Yvan Roy: I would think that the definition, the way it is right now, does not limit the members of that organization to the four corners of Canada. I don't know if others hold a different view, but the way this is defined, it is a group, however organized, composed of three or more persons, and they have a particular aim. We are not saying they need to be Canadian citizens, that they need to be here in this country. It suffices that you have that core group of three or more that has those characteristics. Having said that, I'm not sure it would be a bad thing to specify in legislation that these people can be located wherever they are in the world.

Mr. Chuck Cadman: Is that a legitimate concern of theirs?

Mr. Yvan Roy: As you can see, Mr. Chairman, we are caucusing because that was a very good question that we hadn't anticipated.

Let me try to give you an explanation that is not too long. There is a lot of case law around those notions. We were just talking here about a case called Libman in 1986, which talked in terms of a connection to Canada in order to have sufficient jurisdiction to charge someone here.

• 1705

Mr. Cohen was talking about conspiracies, where some of the co-conspirators are out of the country, which seems again to suggest that wherever they are, as long as the crime is committed in this country, you can catch these people.

Having said this, is it worth your while or our while to make this more specific in the legislation? Perhaps the simple fact that I have to give you that explanation is an argument to make this a little bit more explicit.

That's the best I can do at this stage.

Mr. Chuck Cadman: I suggest that we take a long hard look at it then.

Mr. Yvan Roy: It's one of two things. Either it's covered already the way it is or there is a doubt. Since we would want people to be caught in this wherever they are in the world, you amend the definition. I'm sure it's not that big a job to do.

Mr. Chuck Cadman: Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. John McKay.

Mr. John McKay: I would like to go back to the concerns raised by Mr. Blaikie with respect to this legal vacuum argument, in a post-Shirose and Campbell era or a pre Bill C-24 era. It does stretch the notion of credibility that there is no illegal police activity going on as we speak in the investigation of organized crime. Presumably, if there is in fact illegal activity going on, the police are either cowboys and taking their chances, or they feel there are still defences that are available to them—duress, necessity, you name it.

I'm confused here as to why we're just sort of saying, yes, we have to have this. I'm kind of wrestling with the notion, here's the statutory regime and it sort of sets things out a little more clearly. On the other hand, I'm not at all convinced that the police are in a legal limbo land. To use Mr. Blaikie's phrase, they've kind of thrown down their tools and said, well, you're on your own, go and....

Mr. Stanley Cohen: I'm not suggesting that police are not policing, are not out investigating crime. That's certainly what they're doing.

I'm also not suggesting that all, shall we say, undercover activity that is going on in the country has stopped. But there is a difference between undercover activity that is recognized as legal simply by having people, for instance, attempt without entrapping to find out whether offences are being committed. That kind of activity is going to be going on. The police, whether under this legislation or other, will retain all of the defences they would ordinarily have. If they use force, they of course have the right to rely upon self-defence. They have the right to defend themselves, as they would under the ordinary law of the land. Some of them may go too far and may be committing offences in doing that, and they could be charged, but that is not really what this exercise is about.

This exercise is about certain situations where the police recognize that the law prohibits them from doing certain things. You've heard a lot of examples. Commissioner Zaccardelli gave you a number the other day, involving counterfeit, buying counterfeit bills, involvement in credit card fraud, etc.

If they realize they are running afoul of the technical law, they have concerns that they might, first of all, it's been pointed out, depending on the case, lose the evidence, but they might also be vulnerable to prosecution. That's a different matter.

Mr. John McKay: Do you think this bill makes any difference to a police officer if the police officer has in fact manufactured a crime?

Mr. Yvan Roy: Manufactured a crime? It's already the state of the law in this country that that constitutes entrapment. The person is going to be entitled to a remedy if that is the case.

Having said this, I have with me Chief Superintendent Robert Lesser of the RCMP, who can, I guess, put on the record what it is the RCMP has done following Shirose and Campbell. When you're suggesting that it doesn't make a difference what the law has become following Shirose and Campbell, I would like for Mr. Lesser to tell the committee how seriously it's been taken by the RCMP.

• 1710

Mr. John McKay: I think that would be good.

Chief Superintendent R.G. Lesser (Officer in Charge, Drug Enforcement Branch, Federal Services Directorate, Royal Canadian Mounted Police): Thank you.

I am the officer in charge of the drug enforcement branch within the RCMP, so in addition to responsibilities to the national drug program, I also have responsibility for our national undercover program and our source witness protection program, not just in the area of drugs but in all undercover operations.

Once Campbell and Shirose came out and we received a legal opinion from the Department of Justice, instructions went out to all members of the RCMP that they were to cease and desist any activities for which there are no legal provisions to have that done. We have since sent out following memos and instructions as well to reinforce those instructions.

From a number of comments that have been reported in the press from members who were perhaps less pleased with those types of instructions, my sense is that they understand those instructions and they ought not to be doing anything that is not right now allowed by law.

Mr. John McKay: Can I make a comment?

The Chair: One quick one.

Mr. John McKay: I don't know whether this memo is an internal memo or.... The memo's based upon an opinion of the justice department lawyers who are sitting beside you—very good lawyers, by the way.

You sent out the memo. I assume that's months ago, or a year ago, or such. What has been, though, the actual shutting down of operations for which the police feel they have no protection? Can you give us examples—

Mr. Yvan Roy: Not actual sites.

Mr. John McKay: Not site examples, but give us general examples of the kind of thing the police feel they no longer can do pursuant to the memo from the department.

C/Supt R.G. Lesser: There are some areas, and in particular immigration. Right now we cannot do undercover operations in immigration areas; whereas you'd normally have an undercover operation wherein you'd be somehow involved with the organizations that are illegally smuggling people into Canada, we can't do that because it's illegal to smuggle people into Canada.

As a matter of fact, we've had to turn to U.S. authorities to be able to do certain acts in Canada, so that they can follow through on investigations to investigate offences into the United States, because we cannot do our part in Canada. We're restricted to conducting surveillance in those investigations instead of being involved in actual undercover operations.

Other investigations we can't do involve the purchase of illegal liquor or tobacco with the smuggling initiatives that are going on in the cross-border forum, and those types of issues.

Before Campbell and Shirose came on, and I want to reflect this in a positive light, we didn't realize how many offences we were committing just in the way we would normally do things. A lot of it relates to provincial law, such as signing in at hotels with false names, getting registration in false names, and fairly simple things like that.

There are also fairly simple things such as doing surveillance. If you're in a boat I think it's the small vessel regulations that require that at nighttime we have running lights. Obviously in certain areas, and Cornwall is probably a pretty good example around here, you're not going to achieve very much if you sit out on the water around Akwesasne with your running lights on. That technically is an offence under federal statute.

From the ridiculous to the sublime, there's nothing we can do, or that we're allowing our people to do, that is against the law.

The Chair: Réal Ménard.


Mr. Réal Ménard: Mr. Roy, you expressed some reservations, some qualified reservations as you usually do, regarding a broadening in the definitions section of the bill, of the protection that could be granted with respect to offences involving the intimidation of a mayor. For example, if we were to decide to table an amendment on mayors, members of provincial legislatures, and so on, what concrete warning would you give us?

• 1715

Mr. Yvan Roy: Mr. Ménard, if there is a problem, in our view it would stem from paragraph (b) of subsection 423.1(1) of what would be the new code. That is on page 17. All that is required for the intent by the person committing the offence is the intention to harm the individual in the performance of his or her duties. What was considered originally was duties, but in relation to the criminal law. A mayor, unlike a police officer or a Crown attorney, for example, does many different things in the context of the performance of his or her duties, which have absolutely nothing to do with the criminal law.

Mr. Réal Ménard: And that is true for a member of the House of Commons or the Senate.

Mr. Yvan Roy: Yes.

Mr. Réal Ménard: A member worthy of the name, of course.

Mr. Yvan Roy: This is something that was added a little later, and the justification was that you are the people who write the criminal law of this country, you are the legislator, you adopt these provisions and consequently you can all be subjected to intimidation. This is not true of a provincial minister or a member of a provincial legislature. Nor, of course, is it the case of provincial elected officials. So if they should be included—and I am not saying that they should not, because in the area of the administration of justice, they be subject to some of these pressures—we think it would be advisable to try to restrict the intent to impede someone in the performance of their duties by trying to constrain this, to put it within a context closer to the administration of criminal justice than is the case at the moment.

I would say that when we review these matters in cases where there is a necessity to do so, we ourselves must do our duty in this regard.


The Chair: Thank you, Mr. Ménard. Thank you, Monsieur Roy.

Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you very much, Mr. Chairman.

Mr. Réal Ménard: We want to ask a question. We need to have some time.

The Chair: We'll be back. Three minutes. Those are the rules.

Mr. Myers.

Mr. Lynn Myers: Thank you, Mr. Chairman.

When the chief superintendent was sitting at the table a few minutes ago, I was interested in the kinds of things he was saying with respect to some of the things the police no longer could do. I'm not sure if we can call him up again just for a minute.

I heard things such as immigration cases being hampered as a result, and about the running lights on the St. Lawrence and buying liquor and cigarettes and such. I think it would be useful for the committee if you could give us a list of the kinds of general activities that have been curtailed as a result of what you've been talking about. I think that would be most useful, because I think it would help us as a committee and as members of Parliament to fully understand the extent to which your abilities to do the kind of work that you, as police, should be able to do have been hamstrung.

I think it would be useful for this committee to have that list, but I'll also ask you now whether or not you can give us further examples of the kinds of things you've seen and have been curtailed in doing as a result of the decision taken.

Mr. Yvan Roy: Before Mr. Lesser answers, could I, Mr. Chairman, remind the committee that Mr. Lesser will have to be careful of what he says. He doesn't want to put on the record investigative techniques or anything of the sort. And this is why we've been reluctant to have someone like him at the table and testifying at some length.

I know that it's frustrating for you, but there is that tension in the system. I just want to put that ahead of Bob saying something here.

Mr. Lynn Myers: Mr. Roy, I think it's fair to say we understand that, and we would never want to jeopardize any ongoing operational matters with the police. But if there are general things....

Maybe you want to say you don't want to answer right now, you'd rather think about it and bring the answer back by way of a submission. And that's fair too, if that's the way you want to go. But I repeat: we'd never want to jeopardize anything you're doing by way of techniques or ongoing operations.

C/Supt R.G. Lesser: I think perhaps I can give a short answer to that and then provide the fuller answer in written format, as you've requested. And certainly we'd be pleased to do that.

Another area of interest to the committee, perhaps, and of particular concern to us, is Internet investigations. When you have pornography related to Internet investigations, a lot of people obviously meet on different talking sites. One of the techniques would be to pick up a conversation with people who are trying to sell kiddy porn and then trying, through discussions, to exchange what would be pornography. This is one of the operations that happened in Ottawa a short time ago when someone was arrested. We can't do that now. We could not distribute a copy of what perhaps would be pornographic material to a potential kiddy porn person out on the Internet.

• 1720

To investigate illegal traffic and firearms, it would be very difficult for us to actually get involved in an undercover operation where we're in possession of illegal firearms, where we're buying them and those types of operations.

There's a list we've prepared. Another example would be hate crimes, although I'm not very involved in this. But anything that would require us to do certain things to prove we also were criminals to a certain extent, within a controlled manner, to try to engage whoever the targets would be in their own vices, as it were, we can't do those things to try to win that camaraderie or that trust with targets we would have.

The obvious ones that have been given before are the counterfeit money and the counterfeit credit cards. Those are things that usually come up on the spur of the moment. Someone offers you a few hundred fraudulent credit cards because they've just gotten the numbers and did the cards. They'll sell them very quickly and they will be good probably for a few hours until the person realizes his credit cards have been stolen. There are more than just a few people involved in that, which is what it used to be; it's bread and butter for some major organizations. Of course, for us to be able to take the opportunity to be able to buy those and trace that back further, we can't legally buy those stolen or fraudulent credit cards.

The Chair: Thank you, Mr. Myers.

Mr. Blaikie.

Mr. Bill Blaikie: This gets very interesting, Mr. Chairman. I think we should see the instructions the Department of Justice give to the RCMP, because it sounds more to me like the police are responding to the Department of Justice's interpretation of Campbell and Shirose than they are to Campbell and Shirose itself. Again, I'm not a lawyer, but I find it incredible that so many things could be derived from this one judgment about a reverse sting.

The Supreme Court must have been.... I don't want to be in contempt of the Supreme Court, but I certainly wouldn't have drawn from Campbell and Shirose that if you were trying to catch smugglers out on the lake you had to have the lights on or you would be subject to some kind of charge for breaking the boat rules. I find it incredible that this is the interpretation that somebody put on Campbell and Shirose. I didn't see it in Campbell and Shirose myself.

If somebody has told the RCMP that our interpretation of Campbell and Shirose is that you have to have your running lights on when you're trying to hide, or you can't check into a motel and use a phony name, I'd like to see that memo and I'd like to know who these people are who gave this kind of advice to the RCMP.

Maybe with respect to some of these other matters I can see more of a parallel to Campbell and Shirose. With respect to exchanging pornography or something like that, it's starting to get a little closer to what the court actually ruled on. But it seems to me that's not what the court had in mind, or it seems to me that there's some kind of overreaction here that I can't completely understand, and as a result we're being asked as a Parliament to sign a bunch of blank cheques to cover various forms of activity that I'm not sure the court struck down. If the Department of Justice is convinced that the court did strike down all these rather trivial ways of breaking the law, I'd like to see that opinion.

The Chair: Any response, Monsieur Roy?

Mr. Yvan Roy: Mr. Chairman, all I can say is that you have heard this morning from Mr. Asselin—who is not working for the Department of Justice, has never worked for the Department of Justice, but has been working with the police for the past 30 years—that he and his division came to the same conclusion completely independently of the Department of Justice. That also appears to be the view held by the other attorneys general in this country. A number of them worked with us very closely in devising the scheme that is now being presented to you. By very closely I mean not only sending a draft once in a while, but also having long meetings talking about this. That seems to be the opinion held by many people.

• 1725

We consulted on this. A white paper was issued in June 2000. At the meeting that was held here on October 5 of last year, there was no one in the room, including a bunch of academics, to suggest that this ruling did not have the breadth we understood it to have. Some people were saying, rely on prosecutorial discretion. For the reasons I have tried to explain, we don't think that is an appropriate way to go, and other attorneys general seem to be of that view, too. From what I have heard from the people who have looked at this, that is the conclusion of everyone. Whether it's right or wrong, it's the conclusion that has been reached by a number of different lawyers working independently.

Mr. Bill Blaikie: Nobody has volunteered to give us the Department of Justice's opinion.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I'll try to elicit that. Is it possible to get the Department of Justice's briefing that was referred to in the evidence here today?

Mr. Yvan Roy: What briefing are you talking about?

Mr. Bill Blaikie: I'm referring to a legal opinion that you....

Mr. Yvan Roy: Oh, the legal opinion. As the chair knows, it is not the practice to give legal opinions. Indeed, the decision in Shirose and Campbell establishes quite clearly that the solicitor-client privilege applies to the relationship between the crown and the police. That was the other thing that was decided in that decision. I can tell you that, obviously, we have collectively reached a conclusion that there is a need for legislation.

Mr. Peter MacKay: So we could ask the information commissioner for it.

Mr. Yvan Roy: I will not comment, Mr. Chair.

Mr. Peter MacKay: No, I don't expect you to.

My question goes back to the training aspect, which still concerns me, and the breadth of this potential immunity. What appears to have happened, in my view, is that the Supreme Court, much like they did in the Feeney case, created a vacuum when they struck down powers of arrest, or pursuit in that case. The same sort of thing has happened here. It's your interpretation, and the interpretation of others, that this severely hindered the ability of police to conduct undercover-type operations that involved breaking the law. We're also hearing, particularly from learned defence counsel, that this is going to result almost immediately in constitutional challenges.

From a layperson's point of view, what appears to be happening in this country is that we're playing this game of constitutional ping-pong. The Supreme Court strikes down a law; we respond, potentially going to the extreme; and they pare us back. Is there some merit—and I've asked this question before in this committee—in trying to get the Supreme Court to actually give a ruling on what these powers are? I know they've said that this is the legislators' job, but we're getting into this routine of going back to the Supreme Court, having them cut us back and send it to us to be fixed, we fix it, and they in turn strike it down again or create another hole. Why, in your view, have we not responded with more moderate immunity, rather than this type of blanket immunity? Some form of measured immunity seems to be more in order here.

Mr. Yvan Roy: With the greatest respect, we call the kind of immunity justification we're talking about here limited.

• 1730

You will have heard from other witnesses that they would not want to see lines being drawn, if only because they're afraid of the testing of loyalty that may take place because of the existence of those lines. So it is limited in the sense that when there is accountability, political accountability as well as legal accountability, you are talking here about a test that requires there be proportionality, and if the test is not satisfied, you have criminal liability. It is limited also because only some offences can be committed. The most serious under our laws have been excluded from consideration.

Now having said that, is it going to be tested? These days everything is tested. When you look at the Supreme Court of Canada reports, you see that a large portion is on criminal law.

What the court has also said on a number of occasions is that it is extremely difficult for them to decide a matter like this in a vacuum. They need, in other words, to have some facts. Since you are a former crown prosecutor, I'm sure you will agree with me that bad facts make bad law. It's going to be, it seems to me, the duty of the state to use this scheme very responsibly and to bring forward the right cases so that the caseload will develop in a way that is in accordance with what Parliament wants to do.

It seems to me, Mr. MacKay, that what you will want to see is an appropriate case going to the Supreme Court of Canada for them to make a determination. We believe that determination is going to be informed by the debate that has taken place in this room and will take place in the other place, simply because it is possible for the court to refer to those debates. Indeed, they say they have done that quite extensively. They want to know what are the legislative facts on which Parliament has decided, and when they know what they are, they show a fair amount of deference.

I will conclude my remarks on this by referring you to the case of bills. For a number of people Bill C-46 was unconstitutional because it appeared to codify to some extent at least the minority decision in a couple of Supreme Court of Canada decisions. Having put before Parliament and in particular before this very standing committee a lot of evidence, the court took that into account and said in a decision, which is now the state of the law, that what Parliament has done is perfectly correct. This is the purpose of having those debates. We hope that this is going to play a large role in the courts ruling that this is constitutional.

The Chair: Mr. Cohen.

Mr. Stanley Cohen: I won't address the issue of a reference, but you have put your finger on the issue of justification. I think the reason people, including the defence counsel you heard from this morning, Mr. Trudell, have said that this is going to end up in the courts right away is because it inherently carries with it a certain amount of public controversy. I think that's why this committee has been wrestling with the subject matter the way it has. That said, it's incumbent upon Parliament to address a matter of pressing and substantial importance, and that's what the courts will ultimately have to come to terms with when they examine whether or not this is justified. That's assuming, of course, that whoever is challenging it reaches a stage of establishing a breach of an individual's rights.

Then we turn to the issue of justification. Is it pressing and substantial? The first place I look when answering whether a criminal law measure is pressing and substantial is the Ouimet report, which goes way back in Canadian history. Its primary architect was G. Arthur Martin, who is a giant in Canadian criminal law history. He says, and I'm quoting here from the Ouimet report, Towards Unity: Criminal Justice and Corrections, a 1969 report:

    Crime control is a matter of pressing and substantial importance to Canadian society. Indeed, society has a real interest in controlling crime and in the enforcement of its laws. The protection of society through the reduction of crime is the primary purpose of the entire criminal process. Therefore society has an interest in deterring and preventing crime through effective detection and prosecution.

• 1735

So the overall justification for this immunity scheme in terms of its pressing and substantial nature is made out in terms of its contribution to effective law enforcement, the protection of society, and the enforcement of society's criminal laws.

After we get past pressing and substantial in the section 1 justification, we move on to whether this is a proportional response. We look at whether or not it is impairing rights and freedoms as little as possible. We tried to talk about that in the course of these hearings in terms of the tailoring of the legislation, the fact that there are gradations, there is oversight, and there is accountability. Essentially, the proposition this legislation is resting on is that there is sufficient legislative restraint inherent in the structure of the scheme to meet the demands of both proportionality and minimal impairment. That is the constitutional burden that a court will ultimately be called upon to address.

I don't know how we can ever escape what you call ping-pong and what some of the cases have called constitutional dialogue between Parliament and the courts. It may be that in some individual cases there will be an attempt to leapfrog the lower courts, but, generally speaking, the Supreme Court wishes to hear what the lower courts have said. That's the case in particular for the trial courts, which have had a case before them that is rooted in real witnesses and real facts in order to determine whether or not the legislation is actually misfiring and whether there are abuses of the kind people are suggesting are going to flow from the enactment of this kind of legislation. I think that is why there will be some reluctance in entertaining this kind of thing. But that is simply a personal opinion, not a legal one.

Also, you may not get the answers you want. There will be lots of suppositions and hypotheticals perhaps and a desire not to evade answering the question, but to be prudent about how the question is answered, because they cannot possibly know all the permutations and practical situations that will confront the police. So there are some problems that go along with that.

The Chair: Thank you very much.

I want to ask a question for Mr. McKay. It's a question you asked earlier. I mean John McKay. I wouldn't presume, Peter, to put a question for you.

Earlier John asked why the Canada Evidence Act amendments were not brought forward, as recommended by the subcommittee. I don't think there was an answer. I would be interested in hearing one.

Mr. Yvan Roy: I'm looking for the report of the subcommittee. I hope I brought it with me.

The Chair: Recommendation 13 says “Amend the Canada Evidence Act to codify and simplify the rules related to disclosure”. We heard a lot about it during the course of our hearings.

Mr. Yvan Roy: The bad news is that it's not in this piece of legislation. The good news is that we're working on it. It is part of the legislative program that ministers of justice and attorneys general have asked the department and provincial partners to look into and to come up with some legislation that will give us the framework that is lacking with regard to disclosure.

I should add, Mr. McKay, that efforts are being made right now to facilitate the disclosure through electronic means. I don't think there is a need for legislation in order for that to happen. It can be done. It's just that there have been some cases, particularly in Ontario, where some lawyers have said, sorry, I don't know how to operate those machines, and you have an obligation to give me the paper format instead of the CD-ROM. I think that as time goes by, this kind of resistance will disappear.

To directly answer your question, yes, this is a matter we are addressing, and hopefully it will be the subject of legislation in the next wave of amendments, presumably sometime next year. At least that is what I'm hoping for, subject, of course, to instructions from my minister.

• 1740

The Chair: Thank you very much. Thank you very much to the witnesses who appeared, and thank you, everyone, for again informing this debate.

Earlier in the day we had a discussion over the timeliness of proceeding to clause-by-clause. I would remind members that originally we intended to be going through clause-by-clause, or probably finishing it, just about now. We went from Tuesday to Thursday morning to give a little more time for people to prepare amendments and so on. The point was made this morning that there were some questions that needed further thought—contemplation, I think, was the word used by the member from Winnipeg—and there was discussion which indicated support for that. I had asked for the opportunity for the officials to appear so that we could frame our discussion after their response and everybody would be informed by their intervention.

That said, we now have to decide whether we want to proceed to clause-by-clause on Thursday, as we originally planned, or we would like to do something else. I'm awaiting instruction from the committee.

I recognize Mr. Ménard, and then Mr. Maloney.


Mr. Réal Ménard: I would like to make an informal suggestion.

I know that the government and all the opposition parties, I believe, want the bill to be passed before the end of this session. Some issues may require some discussion by our caucuses. For example, tomorrow morning, we will be having a discussion about immunity. There were some interesting arguments put forward by the MUCPT this morning. You know how it works in caucus: it is the place where issues should be discussed.

I would hope that we would not proceed with the clause-by- clause study on Thursday, but that we would proceed with it on the Tuesday following our return, provided we agree to complete the study that day. If my opposition colleagues agree, we could make a moral commitment, depending on what the government wants to do, and in light of the fact that we need more time to do the clause-by- clause study in a single day, on Tuesday. If that means that we have to go over the statutory time the committee has, I think this could even be done in the evening. I think it would be very difficult for us to start on Thursday, and it would not give people much time to draft amendments. I therefore think that we should agree to do the clause-by-clause study on Tuesday and finish it that day.

Of course, as I said this morning, I wish we had a briefing book explaining each clause, as is done with other bills. I think we have discussed about 20 per cent of the bill. As legislators, it is important to understand the consequences of the clause when we vote on that, given the seriousness of this work.

That is my informal suggestion, and I hope you will agree.


The Chair: It has the wisdom of someone 86.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Thank you, Mr. Chair.

I appreciate the concerns Mr. Ménard might have with his caucus, but I think this morning there were a lot of questions and concerns on both sides of the table. We've had the privilege of listening to the witnesses this morning, as well as this afternoon, and for me a lot of the concerns have been satisfied. Also, if we don't move this thing along, I have real reservations as to whether this will get through the Senate by the end of the session, and I think it's important that this legislation be in place as soon as possible. We've heard from numerous witnesses as to the urgency. Finally, I don't think a clause-by-clause book is a requirement. It's done often as a courtesy, but I'm not sure that it's really necessary at this time.

The Chair: On the first point, Mr. Maloney, Mr. Ménard premised his proposal with the desire that we have this legislation before we break. That would explain, I suspect, the sense of urgency Mr. Blaikie referred to this morning. As the parliamentary secretary, is it your position that we would not get this legislation through before the present break?

• 1745

Mr. John Maloney: I'm concerned that we will not get this legislation through both the House of Commons and the Senate by the end of the session. I'm not talking about the break....

The Chair: Unless we proceed on Thursday. Is that my understanding?

Mr. John Maloney: I'd like to proceed as expeditiously as possible in order to prevent that contingency from happening.

The Chair: Mr. Blaikie is next, and then Mr. McKay.

Mr. Bill Blaikie: Mr. Chairman, I think Mr. Maloney's view is wrong-headed on two accounts. First of all, if the government is interested in jamming it through committee without taking seriously the concerns people have, the opposition, given the very limited time available, can make sure the government doesn't get it when the government wants to get out of here—and I won't name any dates. That's no big deal.

If that's the game that's to be played, well, we'll be put on notice. But I can tell you it's not the view of the government House leader. Without wanting to reveal confidences of government House leaders' meetings, there were discussions about this today, and there was a discussion about the fact that this might not come out of committee until the week after the break. There was no concern expressed by the government that this would then lead to this bill not being dealt with in the time required by the House.

Perhaps it's a matter of miscommunication between the government and the parliamentary secretary, who is always here to do the government's dirty work no matter what the committee happens to think.

An hon. member: Be nice.

Mr. Bill Blaikie: I'll be nice when people are being reasonable. If people aren't going to be reasonable, then I won't be nice. It's as simple as that.

The Chair: So far, Mr. Blaikie, I think we're really genuinely trying to do this in a way that is inclusive of everybody's desire to do two things: to be fair to this legislation—

Mr. Bill Blaikie: Mr. Chair, if I might just finish, I think the reasonable thing to do here, because it has not been a partisan—there's no NDP position, Alliance position, Liberal position. I think the committee owes it to itself at some point to talk amongst ourselves about whether there are concerns we share about the more controversial aspects of the bill, or perhaps to reassure ourselves, collectively, that what may seem to be a problem isn't a problem, or whatever conclusions we come to. But for us to simply move right off the evidence and go to clause-by-clause, without having the benefit of the transcripts or even any chance to think about things, given that we're busy tomorrow again with the minister, is an abusive process as far as I'm concerned.

The Chair: Mr. McKay.

Mr. John McKay: I made the argument this morning about building the record in part because we all know that these provisions will be challenged constitutionally. If Parliament is serious about a dialogue with the Supreme Court, then the only way in which we can do that is through Hansard. I think that argument is still a valid argument.

I think before we move to clause-by-clause every one of us needs to be satisfied that we have built the record to the extent that we can build the record. I appreciate the appearance by the officials and their attempts to supplement some of the reasoning they had initially put forward, and I thought that was a significant step in that direction.

I frankly don't know what else I would want to put on the record, but there may be some things that have been left open. So in that respect I support the notion that we not go to clause-by-clause. However, I don't know how we can have a discussion unless we go to clause-by-clause and start working it through, working out our philosophical differences—

Mr. Bill Blaikie: Have it during....

Mr. John McKay: Well, fair enough.

So if clause-by-clause means we have an ongoing dialogue among ourselves as to what this clause actually means and the evidence we heard and our reflections on it, that's fine. If a dialogue simply means we're just going to have a nice big discussion, then I don't know that I could support that. In that respect, I think Bill's position reflects my own.

Mr. Bill Blaikie: As we are doing clause-by-clause.

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Mr. Peter MacKay: Not to till old ground, but I think there's an onus upon us to scrutinize this and to reflect a little bit on the evidence we've heard over the past number of days. This is a substantive bill. Let's not delude ourselves in any way. This is going to have very far-reaching implications.

If we have the time, and it certainly appears that we do, based on the legislative agenda and based on the days that are available to us, I think we'd be abdicating that responsibility to not have this process of deliberation and an opportunity to not only look over some of the evidence we've had but to delve into it in some detail before we simply go to clause-by-clause. I know that can take place part and parcel, to an extent...but I think there is a need to delve into this a little bit deeper before we take that next step into the clause-by-clause.

It's going to get to the Senate. It hasn't been an issue of contention. This is a bill that I think there's broad support for in every party, but there are some reservations that I think we'd be better off dealing with now before we simply pass it off to that other place, put it out into the general realm, and have it come back to us because it was flawed in some way.

The Chair: Mr. Myers.

Mr. Lynn Myers: Mr. Chairman, what I hear is that there's broad consensus that this is an important bill. I think we're all in agreement on that, and I share that view. I think it's very important that prior to the end of the session this be passed by both Houses.

Monsieur Ménard, though, did say that if we were to put it to the Tuesday, and I think the words were “in an informal way”, could we agree that we would sit Tuesday until it's done? I thought that was part of what you were saying, and I think it was. I see heads nodding on the Alliance side, and I'm wondering if Mr. Blaikie and Mr. MacKay would agree to that. I think we can then proceed accordingly. If it means sitting into the night, so be it.


Ms. Carole-Marie Allard: There is something I would like to know, Mr. Chairman.


The Chair: A point of order, Madame Allard.


Ms. Carole-Marie Allard: When Mr. Ménard refers to Tuesday, does he mean the 29th?

Mr. Réal Ménard: When we return, yes.


The Chair: Mr. Cadman wanted to speak.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I'll just reiterate what I said this morning. I think this bill's a substantial bill and it's something we want to do right the first time, or at least as close to right as we possibly can. I'm certainly prepared, on behalf of the Canadian Alliance, to commit that we're not going to play silly buggers as of Tuesday—

Mr. John McKay: Is this as distinct to...?

Mr. Chuck Cadman: —providing the rest of the people at the table are willing to make that commitment too.

I'm not prepared to discuss whether I'm going to talk about this in caucus tomorrow morning. I have a feeling we'll have some other things to deal with.

I support that we have to put.... Two weeks, I'm not so sure, is going to be that huge, and the Senate's going to do what the Senate's going to do. So I fully support going to the Tuesday after we return.

The Chair: I'm marking this down as the understatement of the....

Mr. Blaikie.

Mr. Bill Blaikie: It's not my preferred course, but I think it's certainly preferable to trying to do it on Thursday. I think it goes as far as I could expect the government to go. So in that respect, I think it's a compromise I can live with.

The Chair: Mr. MacKay.

Mr. Peter MacKay: That's fine. We can use the break week to review our notes and look at it and come back on Tuesday. We'll sit all night if we have to.

The Chair: Before giving Monsieur Ménard the floor, I would remind him of that old notion about once you've sold the insurance.... We have a bit of a consensus here. Try not to....


Mr. Réal Ménard: We have a consensus, Mr. Chairman. I made the suggestion, and we undertake to work diligently to get the bill passed, but I want a briefing book explaining each of the clauses, because we have to do our work seriously. I cannot believe that in the Department of Justice, the place with the greatest concentration of the most brilliant minds in the country, this task has not already been started.

Ms. Carole-Marie Allard: [Editor's Note: Inaudible]

Mr. Réal Ménard: After our respective caucus meetings, Ms. Allard.


The Chair: Is that a direct quote from Monsieur Bellehumeur?

Mr. Réal Ménard: We will request a vote for that.


It is important that we get this briefing book, Mr. Chairman. We have had such books for all the other bills. Why would we not have one on this bill? We may have discussed 20 percent of the bill. If we want people to respect the work done by members of Parliament, we have to know what we are voting on. I think that everyone wants to have a briefing book.

• 1755


The Chair: Mr. Maloney, Mr. Ménard has brought back the subject of the briefing book.

Mr. John Maloney: Would we be able to have a briefing book by that time?

Mr. Yvan Roy: Mr. Chairman, we have been working on a briefing book. The briefing book was done with a view to that document remaining confidential. Once it is in the hands of parliamentarians, obviously it is not.

Let me tell you what I have in mind. We could take some time tomorrow and eliminate out of the briefing book that which should not be made public. I see that some parliamentarians are frowning. This is advice to the minister. We would be giving the undertaking that we will provide something. The only caveat is that the French version of that book right now is about this thick. It cannot be ready before mid week next week, and when I say mid week next week it sounds like Thursday. I can have this delivered to those who have a particular interest in having the document in the French language—in their office, in their riding. We can try to do this, but that's the earliest it can be done.

I have Mr. Bartlett with me, who was feeding me that information.

Bill, do you want to add something?

Mr. William Bartlett (Counsel, Criminal Law Policy Section, Department of Justice): I think what we can reasonably undertake is to try to get a translation back in about a week's time. So late next week we can get the translation back. By the time we get it inputted into something we could give you, it would be later than that. Actually handing you a binder in a week.... We've spoken to the translation people, and I don't think it can be done. That would mean we would have to have the translation back by about next Tuesday, and that they cannot manage. They've said they could give us something back by Thursday. It would take an extra couple of days on top of that to actually create something we could give you.

The Chair: That gives them the book.


Ms. Carole-Marie Allard: [Editor's Note: Inaudible]... it will go more quickly.


The Chair: Just to understand this, to make sure we're all coming from the same place, this means that essentially the book could be available to members probably next Friday for the following Tuesday.

Mr. Yvan Roy: The book, in its English version, could probably be available for members of this committee on Thursday of this week. The French version....

The Chair: Before we proceed, Mr. Myers wanted to say something.

I have a great deal of difficulty with the notion that members are going to have this book in one language and not the other for a long period of time, given the nature of what we all have to do. I'm in the hands of the committee, mind you, but I'd like to hear Mr. Myers.

Mr. Lynn Myers: Mr. Chairman, we always face difficulties in these matters. I think if we can get it in English or French no later than Monday prior to the Tuesday meeting, that's fine by me. If they're talking about a booklet this's just technical.

I'm wondering, Mr. Roy, you might be talking about a different briefing book than I think we're asking for here. We're not asking for the minister's briefing book. We're asking for the various explanations based on the clauses. That's all we need. We've had them before at these kinds of committees.

Mr. Yvan Roy: This is the book I'm talking about. What we are doing is basically taking the book that's going to the minister and pulling out the information that is simply not appropriate to put on the public record. That's all.

The Chair: Mr. Ménard.


Mr. Réal Ménard: The important thing is everyone's good faith, and we understand the logistical constraints we all face.

If you say that we can have the briefing book by Monday the 28th, I could read it in the evening, before the meeting. The reason we want a briefing book is to read it, because if you do not read it... As you know, Mr. Myers, we can agree on things when you are reasonable. I understand very well. If the English version is available before the French version, there is no problem. The important thing is that we get it by the Monday before the meeting so that we can read it. You send it to my office, I read it, and I will be very happy. The idea is to understand the clauses on which we are voting.

• 1800


The Chair: We understand that when the book becomes available in English it will be distributed. We have consent around the table on this point with Monsieur Ménard. We also understand it's a matter of good faith that Monsieur Ménard, or anyone who wishes it, is going to receive it in French as well, certainly no later than the Monday before, and hopefully even before that. Is that clear to everybody?

That being the case, I think we have an understanding as to how we're going to proceed. I thank everybody for their goodwill in causing us to move forward.

The meeting is adjourned.

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