Justice Committee on June 6th, 2006

[Grégoire Webber]

Well, I believe it is within your authority to extend the scope of the law in such a way as to require prior authorization from a judge. But first, there is a need to determine whether such a requirement is necessary and following that, whether it is desirable. Do we really want judges to be involved at that level in police operations related to organized crime, undercover investigations, and so on?

I don't know whether you are in favour of this or not. But I think it would probably be necessary to consult the RCMP on this. However, such authorization is not always necessary, in that the Supreme Court of Canada's decision in R. v. Campbell and Shirose, referred to the Regulations respecting the Controlled Drugs and Substances Act.

The Supreme Court ruled that there was an established regime that did not require the prior authorization of a judge, but rather a certificate issued by a senior police official. This is an example of Parliament requiring a certificate issued by a senior official under regulations made by the minister. The Supreme Court looked at this, even though this was not a matter on which it was being asked to comment. As a result, its opinion could be deemed to constitute a ruling on the constitutionality of these provisions. At the same time, it did not take the time to state that it did not agree. It simply noted the existence of this regime. This is another regime that would be available.

[Réal Ménard, Bloc, Hochelaga, QC]

As a law student pursuing a doctorate -- which is no small thing in the life of an individual -- you are seeking to strike a balance, just as this Committee is, between the powers needed by police to dismantle organized crime networks and the necessary accountability that we consider to be desirable, as elected Members of Parliament.

What I found interesting about the idea of judicial review is that a third party -- possibly a judge -- becomes involved in the process to ensure that there is no abuse. Is that consistent with the confidential nature of some police investigations? Do you believe that as currently worded, these provisions are too generous and thus do not jibe with the ruling handed down by the Supreme Court of Canada, because of their imprecise nature.

Is that not an example of a judicial review that would have the effect of closing a door? There is a potential risk of abuse or the risk that people will rely on a public officer, and specifically a member of the RCMP, to be acting in good faith. In the final analysis, what's you're concerned about is abuse, is it not?

[Grégoire Webber]

There is not only the matter of abuse, but also the constitutional difficulty that this raises if these powers are not adequately framed. You referred to the matter of confidentiality and the role of judges. Judges already order search warrants, and there is a whole regime in place that strikes a balance between the confidentiality required for a police investigation and the need to involve judges for the purposes of obtaining a warrant.

The tools are there. It is up to you to decide whether it is appropriate to involve judges. If you believe it to be appropriate, there will be no problem protecting the confidentiality of police investigations.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I don't know whether I have time to ask one last question.

[The Chair, Conservative, Art Hanger]

You may ask a very short one.

[Réal Ménard, Bloc, Hochelaga, QC]

If there were to be abuse and they led to the collection of evidence that should never have been collected, do you believe that section 24, which relates to the regime for excluding evidence, would apply to these provisions of the Criminal Code?

[Grégoire Webber]

Sections 24.3 or 21.4 of the Criminal Code state that this bill -- no, it's not a bill since it's already been passed into law -- or rather, these sections in no way affect the collection of evidence. The same rules of evidence will apply, whether these powers are used or not.

[Réal Ménard, Bloc, Hochelaga, QC]

I wish you good luck. I hope you get a chance to go the pub from time to time.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I was going to ask the same questions, Mr. Webber, with regard to judicial overview, but you've answered those already. So if you want to proceed with those additional two points you wanted to cover, feel free to use my time.

[Grégoire Webber]

Okay. Thank you very much, Mr. Comartin.

I wanted to speak about certain other recommendations concerning increasing protection against abuse.

Now, the first two recommendations that I made are going to be among the more important: first, let's narrow the scope of the act, so that it speaks only to instances where it is necessary for police work; and second, let's oblige prior authorization by way of a senior police official, a judge, or perhaps by way of another person. Maybe we could think of giving it to a member of another police force that is not as involved in investigating the crime itself, so we would have some form of independence there. Those two would go a long way in protecting against abuse.

A second suggestion I have would perhaps be to prepare, or have the public officer who uses these exceptional powers prepare, a written report every time the powers are used. Currently the law only provides subsection 25.3(2): that there's an obligation to disclose only where exceptional use of these provisions are used, namely damage to property and authorizing a non-police officer to make use of these provisions. Let's extend that to every use, and let's have the public officer outline why he or she thought the use of these provisions was justified as reasonable and proportional, according to the standards set out in the law. So that's point number two.

For point number three, I think there should be a way to increase the responsibilities of the civilian oversight body. Currently under subsection 25.1(3.1), it provides that a civilian oversight body “may review the public officer's conduct” prior to the minister designating that officer. I think your committee could consider extending the powers of the civilian body by obliging it to review—in other words, by making it imperative, rather than permissive, so it would read, “shall review the public officer's conduct” prior to the minister designating that officer.

Finally, I've already touched on my fourth suggestion in response to a question from one your colleagues, which would be to extend the obligations of disclosure under the annual report to all instances of the use of this act, whereas currently it's limited to important damage to property and to authorizing a non-police officer to use these provisions.

So these would be some of my suggestions for increasing protection against abuse.

[The Chair, Conservative, Art Hanger]

Do you have anything to add to that, Mr. Comartin?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

No, thank you, Mr. Chair.

Thank you, Mr. Webber.

[The Chair, Conservative, Art Hanger]

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you for your presentation.

I listened quite intently to what you were saying, and I have to ask the question: do you really understand the involvement of the police, what they go through during these major operations, of finally coming to making an arrest and bringing forward a charge?

I've talked with police officers in the past, and I find that the activities that are involved trying to get to the bottom of whatever they're doing involve a number of events, a whole range of events. It could bring about a cause to immediately react in some way that makes it difficult for the police officers to do such a thing without the proper legislation--which I understand the RCMP are quite happy with and are able to operate under.

But if you look back to the times before there was legislation, these undercover operations took place quite often. There were huge amounts of investigation. The police knew what they were doing, and they got engaged in numerous types of events that led to the arrest and conviction of certain individuals. It was only when the courts intervened on behalf of one complaint, or something, that this whole legislation came about, just a few years ago, but they operated for years before without that.

I'm not accusing you of this, but I get the feeling that some people actually believe the police aren't capable of doing their job without the good guidance of judges and politicians. I disagree with that, point blank.

I think this is a great group of people who know what they're doing. Sure, they're capable of making a mistake, but we'll deal with those things. But we constantly look for more legislation to put into a huge book that already has so much legislation that it's difficult to follow. We want to put more in and possibly tie the hands of these people who are doing a great job of fighting crime and are trying to get to solving a lot of major issues. I think we need to do a whole lot more relying on their abilities and capabilities, and a lot less on input from people such as yourself--I don't mean anything bad about that--or people like ourselves, the politicians. Let the police do their work.

I'm not sure what you mean by should judges get involved. Involved in what? I thought judges were to listen to evidence and make a decision. I didn't know they were supposed to get involved beyond that.

I'm wondering where all this is going. If the police are happy with the legislation the way it is, and they can operate within that and they're comfortable--in fact, they even said they wouldn't like to see it expanded much further--I don't know what it would be that they would do.

When are we, as a group of people in this country, going to start relying on a great force that knows what they're doing, and quit suggesting that, “Well, before they do this, or if they do that, they have to have these written reports and make sure you clear it here and clear it there.”

I'm hearing all kinds of things that almost make me feel that we don't have confidence in the police force. Well, I'm one person who has 100% confidence in them.

You can respond any way you like, sir.

[Grégoire Webber]

Thank you.

At the very beginning of my presentation, I said that I was favourable in principle to the scheme outlined here, but rather, I sought to provide a greater framework. In fact, Parliament has already provided somewhat of a framework. For example, certain acts are altogether excluded: murder; wilful attempt to obstruct or pervert the course of justice; any conduct that would violate the sexual integrity of an individual. So there's one example.

Moreover, we've decided to exclude any use of these provisions to run counter to the collection of evidence. And finally, we've excluded the use of these provisions for the purposes of the Controlled Drugs and Substances Act. There's a whole separate set of provisions that address those.

Therefore, my concern is not so much that we can't trust the police officers--not in the least. In fact, I'm taking my guidance from the testimony that you yourselves received from police officers, namely the RCMP. I'm saying they've set up internal guidelines that they feel are important to make sure that this functions properly. Let's take their example and let's include that within legislation, not because we don't trust them but because they're good ideas, ideas that they're using anyway. Perhaps this can provide a framework for--let's not forget it--the other police forces that are entitled to use this, such as the provincial police forces.

So let's take the example of our police officers, as you suggest, and let's pay heed to them. That's my suggestion.

[Myron Thompson, Conservative, Wild Rose, AB]

I don't have anything else.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Thank you very much for coming today. I appreciate it. There aren't very many people--in fact, you're probably the loner--doing research in this area, so we appreciate the time that you've taken and the work you're doing.

I was listening with interest. I do believe we have to let the police do their work, but also, in hearing those comments from my honourable colleague, it went through my mind that it's amazing we don't hear that about the judiciary--let the judiciary do their work without interference too. You can't have it both ways, you know.

I would like to ask a couple of things.

We had some evidence earlier on and the witnesses before us told us they were not aware of any cases making their way through the court system on anything to do with this. I imagine in your PhD research you would have to be very careful and be aware of anything on the ground. I asked the RCMP and the police the other day whether they had heard anything anecdotally or factually about any incidents of abuse under this section, or any other, in working.

[Grégoire Webber]

My answer, unfortunately, would be the same as theirs. I haven't heard anything that could be of assistance to your committee.

[Sue Barnes, Liberal, London West, ON]

Quite frankly, it wasn't about being fortunate or unfortunate. I was just trying to see whether there was any more information out there than we already have on that point.

Part of what's happening here is that Parliament in its wisdom gave these powers and did so over the concerns of some of the stakeholders and over some of the advice coming to us. We're now three years out. It's pretty normal when you're uncertain about a piece of legislation...well, not uncertain--I think that's going too far--but when you want to be cautious on a piece of new legislation, especially when you're giving powers like this that are unusual, to put in the three-year review.

I just want to run something by you. This committee will have to draft some recommendations that we'll put forward to Parliament. Other people have talked about ways of delineating, and you've certainly given some suggestions. I'd like to hear your thoughts about a recommendation from this committee for the government to go to the enacting legislation for a review in another three-year time period. In other words, maybe not a constant review, but one more review when more time has elapsed in the use of this. We have noted that some jurisdictions in Canada haven't used this section at all at this point in time.

Can you give us some thoughts on that? I'm not advocating for or against it; I'm just laying it on the table.

[Grégoire Webber]

Thank you for that.

There'd obviously be no objection to including such a review provision three years down the road. I think the necessity of recourse to that type of provision would in part depend on how much we want to restrain the legislation as it exists currently. If we put in a sufficient number of guidelines, there may be a way of providing for ongoing supervision by way of more public reporting, by way of a senior official, or perhaps, as some of your colleagues suggested in prior discussions, through a judge. This way we could be getting day-to-day, month-to-month, or year-to-year reporting, rather than waiting three years.

If we decide to leave the legislation as is, I'd be tempted to agree with your suggestion--not to suggest that you are leaning in favour or against. But it might be important to look three years down the road again, because as many of the witnesses who have appeared before you, such as the persons from the RCMP, have suggested, we actually have very little right now by which to judge this legislation

[Sue Barnes, Liberal, London West, ON]

One of the things I thought I heard you say early on in your testimony was that you wanted a prior authorization for each criminal offence. I'm thinking of the practicality and the safety of the officer on the ground who might have that split-second hesitation because he's thinking of the legalities as opposed to doing his undercover work. Even if it's a momentary lapse, it could endanger a life or an operation. I'm just thinking of the practicality of that suggestion and whether you've thought of a way around it.

What are your views?

[Grégoire Webber]

No; indeed, I completely agree with you.

There's currently a regime in place that obliges prior authorization, as I mentioned to some of your colleagues, respecting damage to property and authorizing a non-police member to make use of these provisions. There we require prior authorization, but also in the provision we say that in certain cases or situations of the kind you mentioned--urgency, saving a life, not compromising the identity of an undercover police officer, for example--you don't need prior written authorization if you're a police officer.

The recommendation I'll be making is in part already in the legislation, and the legislation already has the exceptions that I think would address your concern. Moreover, in terms of the practicalities, the RCMP testified, as I understand it, that they were using prior written authorization to support every act, as I would recommend, and I'm sure that they're providing exceptional circumstances as well.

[Sue Barnes, Liberal, London West, ON]

All right; thank you very much. I did mishear you, then. Thank you.