Mr. Chair, members of the committee, thank you for this opportunity to appear before you today.
My name is Alexi Wood. I am the director of the public safety project with the Canadian Civil Liberties Association. I am joined today by Ken Swan, a board member with our organization, and Brooke Wagner, an intern.
Five years ago, the Canadian Civil Liberties Association appeared before this committee. In our remarks at the time, we expressed concern about the breadth of the powers being given to law enforcement. We are here again today to reiterate many of those concerns.
For months now, the CCLA has been waiting for the committee to undertake this review, and we are pleased to have this opportunity today. We hope the committee will take the comments from the CCLA and others and use them to make recommendations for amendments to the legislation.
In a democratic society there is a fundamental principle that all people, regardless of their position, must obey the law. If this basic principle is going to be violated, it should require the most compelling of circumstances and must be closely scrutinized. Unfortunately, the law enforcement justification provisions of Bill C-24 do not adequately provide for either of those safeguards.
In addition, if government is going to violate this basic principle, then it is government that must demonstrate the need for such extraordinary powers. This has not been done. Several years ago, following Campbell and Shirose, law enforcement complained that the impact of that decision was to hobble certain police investigations. However, subsequent legislation effectively addressed this concern, and police acquired the power to break certain provisions of the Controlled Drugs and Substances Act even before Bill C-24 was introduced.
The CCLA did not then, nor has it ever, objected to legislation that allows for limited power to break the law within certain carefully controlled circumstances. If there are other situations in which such powers are required, the burden is on government to come forward, identify the circumstances involved, and propose a limited law-breaking power to address them. Unfortunately, Bill C-24 creates a general law-breaking power that can be used in an infinite number of circumstances. We have viewed and continue to view this law as unwarrantedly dangerous, and we urge the repeal of this law as it is currently formulated.
In the alternative, the CCLA has several recommendations it wishes to make that could at least make Bill C-24 less bad.
The legislation allows designated public officers to determine what illegal acts they are going to undertake, as long as they believe the act or omission is reasonable and proportional in the circumstances. There are two problems with this provision.
First, there is nothing in this provision to require that the illegal act must be necessary for the protection of an overriding interest. Allowing law enforcement officers to ignore the very laws they are sworn to protect must always be seen as an extraordinary act. The CCLA therefore recommends that the legislation be amended to require that all contemplated acts of illegality be necessary, not just reasonable and proportional.
Second, the decision about usage of these extraordinary powers should not be left to the officers themselves. Officers contemplating breaking the law in the line of duty should be required to obtain prior authorization from their superiors. In the event that such authorization cannot be obtained prior to the act, officers should be required to notify their superiors as soon as possible. Currently, the proposed legislation does not provide for such internal reporting in all circumstances.
In fact, reporting, both internal and external, is only legislatively required in two limited circumstances: one, when public officers direct someone else to commit an otherwise illegal act; two, when the act or omission would likely result in serious damage to property. There is also a requirement to report a temporary delegation of the authority to commit an illegal activity.
The CCLA recommends that external reporting should be expanded to include all illegal activity undertaken by law enforcement. If law enforcement officers are going to conduct illegal activity, the activity must be closely scrutinized by public officials and by members of the public.
I would like to take a minute here to discuss the reports that are submitted.
We have canvassed the reports from provincial police as well as the RCMP and have found them insufficient. They often provide such limited information as to essentially be meaningless.
The reports do not indicate where the act took place. While we recognize that the exact location may be sensitive information, we believe that the reports should contain at least the province, because that would be essential in order to seek a possible redress. In addition, the public ought to know if the RCMP was acting as a municipal police force or was acting in its national capacities.
In one specific example, an RCMP report stated that, and I quote, “...acts or omissions...relating to the possession of stolen goods, theft over $5,000 and conspiracy to commit an indictable offence...”. That description is too vague to give the public the remotest idea of what happened.
In our opinion, the report should provide sufficient detail so as to satisfy the public that the acts are permissible under the legislation and provide enough information so as to know who to hold accountable. Where law enforcement agencies believe they ought to keep such information from the public, the law should specify the criteria that would justify such withholding, and the officer should have to apply to court for an order.
In addition, the legislation allows law enforcement agencies to delay even limited reporting now required. We recognize there may be certain circumstances where external reporting may jeopardize an ongoing investigation or put an undercover operative at risk. In such circumstances, delay in reporting may be acceptable; however, if there is going to be a delay in the reporting, it should not be left to law enforcement to make that decision. Again, if the annual report does not provide the requisite disclosure of all illegal acts, the agency at issue must apply to a court for such authorization.
The provisions cover a wide range of illegal activity, and we are mindful of the necessity for police to be able to conduct covert operations, and they may need to infiltrate criminal elements. There are some illegal acts, however, that, in the opinion of the CCLA, should never be permitted to occur.
The current legislation expressly prohibits the infliction of bodily harm, but arguably allows threats of physical violence. We recommend that the legislation be amended to explicitly prohibit such threats, as well as any act of violence, whether or not it results in bodily harm. The CCLA also recommends that law enforcement should never be allowed to instigate illegalities. In addition, compensation should be required in every case where police law-breaking has caused injury, whether personal or property, to innocent individuals. Finally, no police force should be allowed to engage in this type of conduct unless the governing legislation provides for an independent audit. An agency, independent of law enforcement and government, should have ongoing access to law enforcement records, facilities, and personnel, so it can conduct investigations and ultimately report publicly on the way these powers are being exercised. This agency could operate in much the same way that SIRC currently does in regard to CSIS.
Again, I would like to thank the honourable chair and the members of this committee for the opportunity to appear before you today, and we welcome any questions.
On behalf of the Canadian Council of Criminal Defence Lawyers, I too would like to thank the committee for giving us an opportunity to express our views at this review of the law enforcement justification provisions of the Criminal Code.
My presentation will be very brief, but I do welcome your questions.
As I'm sure you know, the Canadian Council of Criminal Defence Lawyers is a national association of defence lawyers formed in 1992. The chair of the council, William Trudell, appeared before both the House and Senate committees in 2001 to speak to this legislation as it was then proposed prior to its enactment. At that time he urged the committees to proceed with caution, and he expressed the concerns of the council related to this legislation.
Specifically, he expressed a concern about the potential for the abuse of police powers. He expressed a concern about police conduct that is justified under the legislation--and my friend has already made mention, for example, of uttering threats to cause harm or indeed death. He expressed a concern about the vagueness of language in the legislation, for example, the phrase “sexual integrity”. And he expressed a concern, as my friend has also raised, with respect to accountability and the reporting requirements as they exist.
Mr. Trudell indicated at that time that he wanted to look back in five or ten years and be able to assure his clients--yes, your constituents--that the legislation struck the appropriate balance. Now here we are five years later, and this committee is undertaking such a review to answer the question, has the legislation struck the appropriate balance?
It is the position of the CCCDL that given the relatively small number of times the legislation has actually been used, given the absence of resort to the emergency or exigent circumstances provisions, given the absence of judicial consideration of the legislation, given the absence of charter challenge to the legislation, and given the absence of complaints about the use of the legislation, it is really too early to tell if this legislation strikes the appropriate balance. It appears to us that the limited use that has been made of this legislation has been primarily confined to investigations of criminal organizations, and, within that context, usually to obtain false identification papers, counterfeit money, tobacco, and alcohol. However, given recent arrests of persons alleged to have committed terrorist offences, the council is aware that there may be an increase in the use of this legislation in that arena. This increase in the use of legislation may well afford this committee more, and perhaps then sufficient, information to answer the question of whether this legislation has struck the appropriate balance.
Therefore, and perhaps surprisingly to some of you, the CCCDL strongly urges this committee to conduct a further review in two to three years' time to see how all of this plays out. Perhaps at that point in time, Mr. Trudell will be able, as he hoped at his previous appearance here, to assure his clients that this legislation has struck the appropriate balance, or at the very least assure his clients that this committee is continuing to monitor the situation, is willing to hear from us and others, and is willing to address any subsequently revealed need for change. It's just too early to tell.
Thank you very much.
Our friend has commented that there are a number of infelicities in the language in this subsection 25.1(11), and I think that's right. One of the problems is that one has to negligently cause death or bodily harm to another person to have offended against that subsection, to have gone outside the provisions of the legislation. As we see it, that could mean you could have every intention of killing somebody, but fail at it and therefore be protected by the law, whereas if you succeed, you would not be protected by the law.
My friend has already commented on the vagueness of the language, “violate the sexual integrity of an individual”, although I think that may well come from one of the Supreme Court of Canada decisions, that concept of violation of sexual integrity. I'm not quite sure, but it certainly leaves a great deal of vagueness to understand exactly what is meant.
We would have preferred, five years ago, that the specific sections we would authorize police officers and public officers to break be set out in some detail. There's no difficulty whatsoever with exempting police officers from criminal liability for offences of possession of contraband or trafficking in contraband. The problem always comes when you start dealing with offences against the person, and subsection (11), I must say, is only there because of what came out of the consultation process before the legislation was first drafted.
We would like to have it a lot stronger, and we think that dealing with the other kinds of offences, attempts, conspiracies, counselling, at the same time would be a good idea. We don't think the police officer should be going around counselling the infliction of bodily harm.
They seemed to be quite satisfied with this section. They've operated under it for five years, and they're glad it's there. As you would know, they would not like anything to be taken away, as it's presently written, nor would they want anything added to it. They think it's strong enough, and they think they're able to operate within that scope. They feel they've been quite successful, although we're waiting for the reports to verify that is the case.
But one thing has puzzled me since we've started this. I've had some conversations with a few police officers, including our chairman, who's an ex-police officer, about some of the activities of the police in regard to trying to get the job done in protecting society. That's their main mission. On the circumstances of the sequence of events that take place in undercover situations, from some of the stories I've heard, I don't know how you can possibly get prior approval or cover every aspect of it.
I think I represent a pretty solid group of citizens in this country who put their total faith and trust in a trained department, a group of people who are out there doing their utmost to protect people from the criminal element as best they can. We need to listen to these people, support them, and provide them with all the tools in the toolbox that will enable them to protect society.
As you know, the world is changing, and it's getting to be a very strange world to live in. I know that some of my colleagues would say I'm fear-mongering. But when things happen and an 11-year-old is taken off a scooter when going to a video store to get a movie, it bothers people, and it bothers me.
We've got experts in the trade; they're called the police. Within the police department, they have authorities above them. Nobody operates on their own; they all have authorities and internal controls. I think they not only look after the safety of the public, as a main idea, but make absolutely certain that they work within the scope of the law, as provided by this section. I only hope the reports we get indicate that to the fullest.
What puzzles me is that I keep hearing the comment over and over, from people such as yourselves, that we must strike a balance. I've heard from members of this committee that we must strike a balance, and you hear it from the public. We must strike a balance, but a balance according to whom? Is it according to you folks? Is it according to the general public?
The majority of the people out there put a lot of trust and faith in the police to do their jobs, and the police are trained to do that. As to faith in the politicians who are supposed to make the laws so they can operate, well, that would probably be the last place in which I'd put any trust, being a politician. But dadgummit, we have a real job to do in this world. This world is not the best and most comfortable world to live in because of the amount of crime that's around, with gangs, drugs, and all the paraphernalia.
I don't understand what you mean by striking a balance. What would make you happy in striking a balance? Would it be eliminating this section? That's what I hear you want to do. It wouldn't make a lot of people happy. The balance is according to whom? Why do we use the phrase “strike a balance” when we don't even know what it means?
That's my only question, if you want to respond to what I said.
I don't think people like you put enough faith in the people who do the job of protecting society—our police departments. We must do all we can to support them in their cause. I trust them to take care of themselves and not go overboard in any situation because they know their limits. The limits are there, and the Charter of Rights is there.
Go for it, boys and girls. Do a good job. Look after us. We need you.
Let's get off their backs.
That's how I feel. You can comment, if you like. If not, pass on to the next one.
I have a question on that point. It's an anecdotal situation, but really it's a common occurrence, if you will, in police investigations.
You have an organized criminal group. Now, they're involved in a series of fundraising activities, such as armed robberies. They go into a bank or credit union or some other institution and decide they're going to use as much violence as necessary—within some limits, I guess—such as jumping up and down on the counter, waving guns around, forcing tellers to the floor with guns in their faces, screaming at them, and cleaning out the till, and out the door they go. This group continues this kind of activity; they keep on their reign of terror. They're all balaclavaed, so nobody knows who they are.
Now a lead comes in, and there's an effort to try to obtain as much information about this group as possible and to try to get people as close to them as possible. One of them is arrested on a minor charge, or an outstanding warrant—which is in and out—and an operator decides, we don't know who we have here, but there's some connection, so let's find out. So they assault him and obtain a sample of hair from him, and lo and behold, it matches the samples in the balaclava.
Does this section apply?
I just want to make a point, and then I have another question. It is that it's been mentioned a couple of times that this allows people to break the law, but with this legislation in place, no one is breaking the law.
I have five or six areas in which I think there might be improvements. I'm against judicial review, and I'm against public reporting because--without getting into a long debate here, which I will do later when you're not here--I think it jeopardizes the safety of police officers.
But I do have six suggestions, four of which are pretty simple. One I had before coming into this meeting. One suggestion is more periodic review. One suggestion is an annual report that has a time limit--you have to get it in by a certain time. One suggestion is a consolidated report so we don't have to get all the police forces and fisheries officers in the country to put them all together and chase them all over the place. And the fourth suggestion is a limited period for designation, like what the RCMP have chosen to do for themselves. So those are four simple administrative ones.
The two others are more difficult. As I said, I don't like public reporting because it lets the underworld and terrorists know what we're doing, but what about in camera reporting to some organization like an all-party committee of Parliament, which might be better than nothing?
This is the last one. You know there are three laws you can't break, and I'm wondering what you think about adding a fourth one, which would be torture. I suppose you could use an international definition for it, because you'd have to have a definition.
Any of the witnesses are welcome to comment on any of the changes I have proposed.
I welcome your testimony. It's always helpful to us when we have difficult tasks before us.
I tend to agree that the lateness of the reports is a concern, and I think we should note that in our report. I also think, when you go across the land and pick up the reports, you do it individually by jurisdiction. Another witness came before us and suggested there should be one complete report for Canada on an annual basis. First, I want to know whether you think that's worthwhile. One of the things that happens when you collect data on an annual basis is you give everybody a deadline, so hopefully it would be helpful. We could get a real assessment across the country at a glance, basically.
When you answer that question, I do have some concerns about the safety after the fact from operations that have occurred. While I agree that the information tells us virtually nothing that you could get a logical conclusion from at this point, I would like to strike a balance between getting more information, to see the efficacy of the legislation, but not put anybody's personal safety.... If you go down to the point and to the extreme example, Ms. Wood, and you say this came from this geographical data and this thing, somebody's going to know what happened. I think that's very counter-productive to what we're trying to accomplish here.
What parameters when you say...? It has been suggested charges. Have charges been laid or are charges pending--those types of things. That's the type of information.... What other types of information? When we say let's get a better report, what do we really want that's not going to do harm as well as give information? It's that line that we're trying to find here, because I think we can all agree around this table, hopefully, that the reports right now don't give sufficient information.
I also want to thank the witnesses for being here today. I found it interesting and informative to hear your perspective.
I tried not to put words in your mouth, but I did make some notes here. What I think was said was there may be an increase in the use of this legislation occurring. I think Ms. LeRoy mentioned that, and that the reporting requirements are inadequate. Ms. Wood said that we don't know what's really happening. Also, Ms. LeRoy said that we don't know if it works, and you want to have a two- or three-year review.
So there is a concern expressed. Yet there's a lack of tangible evidence to base those concerns on. You have a concern and you're expressing it. That's legitimate. But one of the questions I'd like answered is, what are your concerns based on? As this legislation was being developed, were you in opposition to that? I think yes. Again, what are your concerns based on? If you were opposed before, you remain opposed and don't support the legislation. But in some examples, I think Mr. Swan said he may. I want to clarify that.
I'm starting from a premise that I trust the courts. The judges are human, so all decisions could be critiqued. But the premise I start from is a trust in the courts of Canada. We live in an incredible country, and I believe we have to trust our courts.
We need to start from a premise that we trust our police officers. I won't take it as far as trusting politicians, but that would be a wonderful goal to aim for.
Some hon. members: Oh, oh!