Evidence of meeting #25 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was criminal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Michel Aubin  Director, Federal and Internatioal Operations, Royal Canadian Mounted Police
  • Serge Vandal  Lieutenant, Officer in Charge, Organized Crime Intelligence Unit, Sûreté du Québec
  • Gary Shinkaruk  Officer in Charge, Project E-Pandora, Royal Canadian Mounted Police
  • Christopher Mainella  Senior Counsel, Public Prosecution Service of Canada
  • Kent Roach  Pritchard-Wilson Chair, Faculty of Law, University of Toronto, As an Individual
  • Francis Brabant  Legal Counsel, Sûreté du Québec
  • Jocelyn Latulippe  Chief Inspector, Director of Criminal Investigation Services, Sûreté du Québec

12:10 p.m.

Conservative

The Chair Ed Fast

Thank you to all the witnesses.

We'll open the floor to questions. I'm going to use my discretion to reduce the question period to five minutes, because we've lost some time due to the false alarm.

Mr. Murphy, you will start with five minutes.

12:10 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Thank you, Mr. Chair.

I'm intrigued by this comparison between section 83 and section 467. Just for review, section 83 in its breadth consumes over 30 pages of our Criminal Code, and Section 467, in its breadth on organized crime, consumes four pages.

There's no doubt in my mind, having come back from our sojourn in the west, that it is time we addressed the issue of organized crime, and that maybe we are facing, to use Mr. Mainella's analogy, a Normandy situation, and a beachfront needs to be made. Knowing a lot of Dieppe veterans in the past, I can say that didn't work, and commando raids don't work, so maybe it is time for a Normandy invasion.

I want to take some issue, Professor Roach, not only with the fact that your words in discussing terrorism launched a fire alarm in the building, but also because I tend to disagree with many of your points. One is that judicial review hasn't been tried by groups that have been so named and therefore it's illusory. Those groups have the right to come forward and say they're not terrorist groups, but they haven't. I'm sorry, but to me that means that maybe they think they would be declared terrorist groups. In the case that individual people have been misnamed, that is wonderful. That is what it is there for, and that has worked once.

That the judicial review is lugubrious and slow--the Federal Court is an itinerant court, with judges falling out of the sky to hear anything on quick notice, particularly environmental obstruction cases. The judicial review by its nature means relatively swift, 60 to 90 days. So I don't buy that argument. Of course you're permitted rebuttal in this democratic society, Professor Roach, but it seems to me those are frivolous arguments, and the fragmentation through delay wouldn't work.

My bigger issue is that we can't take the words. It seems to me that reasonable people would read Justice McMahon's wording and say that HAMC, Hells Angels Motorcycle Club, is a criminal organization, and that should be able to apply throughout Canada. We understand it's not an in rem thing, and we can't take judicial notice of it. But if enough judges, pile upon pile, say that HAMC is a criminal organization, what would be wrong with Parliament using its prerogative through a Governor in Council regulation and declaring them such? How could that be a bad thing?

My final comment or question is for the police officers, and particularly the line that the HAMC continue to learn from every court proceeding and adapt their methods of operating. If section 83--that's ATA talk--is used, it talks about entities associated with the declared group, and it gives very wide power, I think, for the cabinet to decide who is and who is not a group, and therefore later on in interpreting the list of groups the judge can interpret who is associated with those groups. What's the problem with that?

12:15 p.m.

Conservative

The Chair Ed Fast

Mr. Roach, maybe you could do your rebuttal.

12:15 p.m.

Prof. Kent Roach

I could, yes, briefly.

On judicial review, as I tried to explain, one of the reasons groups will not come forward to challenge is that the very act of challenging may then itself be a criminal offence, so it seems to me that judicial review.... I mean, to my knowledge there hasn't really been any attempt to have judicial review.

Mr. Murphy's right that in the Liban Hussein case, the error was eventually corrected. The government deserves credit for taking steps, but to be named falsely as a terrorist or an organized crime group does, I think, cause some real harm.

On the issue of fragmentation, I think it is important that trial judges be able to decide all the issues in criminal trials. It's very much our tradition, and the ATA, by introducing the Federal Court.... The Federal Court is a perfectly fine administrative law court that does its work in an efficient way, but the reality is that the Federal Court has not been a traditional criminal justice court, and I think that expanding its activities over the criminal law is not desirable.

12:15 p.m.

Conservative

The Chair Ed Fast

Does anyone else want to comment briefly? We only have fifteen seconds.

All right; we'll move on to the next question.

Go ahead, Monsieur Lemay.

12:15 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

I would like to pursue the line of questioning initiated by my colleague, Mr. Murphy.

I practiced as a criminal lawyer for 30 years. It was not the fact that the Hells Angels or individuals were committing crimes that posed a problem. Parliament passed subsection 467.1(1) of the Criminal Code, which defines a criminal organization. You outlined the kinds of criminal offences that could come under this subsection. Now, police forces are asking us to draw up a list of these so-called criminal groups. Justice McMahon of the Federal Court of Appeal has defined the term “criminal organization”.

Professor Roach, if Parliament decided to draw up a list which included the Hells Angels, for example, would the burden of proof not be reversed? At that point, would it not be up to the Hells Angels to prove that they are not a criminal group, if they want to be removed from that list?

12:20 p.m.

Prof. Kent Roach

Where would the group go to discharge that burden of proof? Would the group go to the Federal Court on judicial review, or would the group be able to challenge it in a criminal trial? Hence my concern about fragmentation.

If you take the terrorism model as your template, “terrorist group” is defined in section 83.01 either as a group that has terrorism as its aim--very much like section 467.1--or as “a listed entity”. The concern is that you are substituting cabinet's decision to list for what is essentially a highly aggravating factor when it comes to the individual's criminal trial.

12:20 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

All the police forces are telling us that Crown prosecutors do not want to be forced to spend four, five, six or seven days, or even weeks, producing evidence that the four individuals concerned are members of the Hells Angels.

So, what is the solution? As I see it, making a list is not a problem. They would have to come before the Federal Court and prove that they are not a—

12:20 p.m.

Prof. Kent Roach

It seems to me the solution is to improve the mega-trial process throughout. It may be that in some cases it is going to take a week to prove that there is a criminal organization, but that's the price of having trials and proof beyond a reasonable doubt. My friends from the police organization did not cite any cases where a prosecution has been ended because they could not prove that it was a criminal organization. Judges and juries have a certain degree of common sense, and it isn't all that unusual that Justice McMahon and others would come to a conclusion that the Hells Angels is a criminal organization.

Even if you had the listing—and even if they did not challenge it to the Federal Court of Appeal or under the charter—you would have to establish that this particular accused was acting for that criminal organization, in addition to the crime.

I believe one of the representatives talked about three things that have to be proven in most organized crime cases. What I'm suggesting is that this solution only addresses one and may open up more problems and more charter challenges than it actually closes. If there is empirical evidence that most organized crime trials are being consumed with 40%, 50%, or 60% of the time spent proving that it is a criminal organization, then yes, we may have a problem and there may be a section 1 justification.

12:25 p.m.

Conservative

The Chair Ed Fast

I'm going to have to cut you off there.

Mr. Comartin, you have five minutes.

May 26th, 2009 / 12:25 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Thank you, Mr. Chair.

Thank you, witnesses, for being here.

Mr. Mainella, I'm going to start with you. I would like to follow up on this point, which I was going to raise before Professor Roach did, but he beat me to it. What about the practical problem? If we went ahead with this concept we would list the groups. We don't list individuals. So how practical is it going to be for shortening the trials? Because we're still going to have to prove in each case that those individuals who are charged as being members of the organization are in fact members of the organization. That's question number one.

On the comment on the Lesage and Code report, do you see that as going reasonably successfully, if those changes were implemented, to resolving the difficulty with the lengthy trials?

Finally, Professor Roach, if I understand Mr. Ménard's approach, he is looking not at duplicating the ATA listing approach but in fact using a judicial model. I don't know if you've conceived of that kind of an approach. So you wouldn't have this blurring of responsibility and separation of powers. Also, it seems to me that it would do away with any of the charter arguments if it was in fact, say, a panel of three Superior Court judges gathered from around the country on a periodic basis to have a trial as to whether this group being charged as a criminal organization would in fact meet that test.

12:25 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

I'll deal with the practicality question first. In terms of practicality, there are two responses. The first thing is you need to understand that when people think about criminal organizations they tend to use an analogy to corporations. They think they operate that way.

The better way to think of them, particularly outlaw motorcycle gangs, is as a medieval guild. They tend to be a band of brothers of like-minded individuals, but they commit their own crimes in their own way. Oftentimes they're in rivalry with each other. So when you think of a criminal organization you have to understand that once you get past the label of it, they don't operate the way corporations tend to operate. There's no one bank account in Switzerland where all the money goes and then there's a payout of shareholders at the end of the year.

The other part of practicality is that juries and judges need to understand context. If an outlaw motorcycle gang tells a person they are going to take them on a ride out of town, that has a particular context, a meaning in the outlaw motorcycle world. A jury doesn't understand that unless you call expert evidence and some background to put that in. So the crown is still going to have to call evidence about the organization and how it works in the trial to understand certain facts. A fact may be innocuous to you watching, like hearing on a wiretap that they're going to take you out of town. But it could mean the end of that person's life in the biker context.

12:25 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Excuse me, Mr. Mainella. It's just that we don't have much time. I think we generally do understand that. What we're really asking, given what you've just said, is this: is it in fact going to shorten the trial?

12:25 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

You're still going to have to call evidence about how the group operates. It will depend on the specific case.

In terms of your second question on the pretrial powers, more powers to the judiciary to manage trials is a good thing. Right now, we still operate on a bit of an Edwardian criminal procedure. There aren't those very firm deadlines and there are a lot of judges who want that. It would assist in the structuring of trials.

12:25 p.m.

Prof. Kent Roach

Just quickly, the judicial model would deal with the separation of powers, but I would worry that it would have a lot of resources. So why do we need to have these trials at periodical intervals, when the definition of criminal organization itself is so wide that I think it's open for prosecutors to say they don't have to prove that the Hells Angels is a criminal organization, that all they have to prove is that these five guys who hang out at this clubhouse are a criminal organization?