Justice Committee on May 9th, 2006

[The Chair, Conservative, Art Hanger]

Mr. Scromeda, maybe it would benefit the committee if you could present the training module or package to the committee members. Also, it would be beneficial to the committee to receive any feedback you have had from the different agencies in reference to this particular legislation on how it impacts their investigations. Obviously there is some feedback coming back from the different agencies across the country.

[Shawn Scromeda]

We have both, actually.

[The Chair, Conservative, Art Hanger]

We would like you to table those here in the committee. It would be beneficial too if we could get them as soon as possible. I'm not sure what your timeframe would be like, but we do have the operational side coming in to present, and it would be beneficial if we had some of that information.

[Shawn Scromeda]

Certainly.

[The Chair, Conservative, Art Hanger]

Mr. Lee, for five minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

In terms of the breadth and scope of the act, can I ask if it would in any case apply to officials who work with the military, the Department of National Defence, with the Communications Security Establishment, with CSIS, or with the Canada Border Services Agency, either for immigration removals or for customs? I suppose here I'm asking in theory and in practice whether it would apply to any of these. Those persons would have to be peace officers or acting as peace officers, I presume.

If you're not sure, we can move on. If you're sure, I'll take the answer right now.

[Shawn Scromeda]

In a sense, you've answered your own question. The essential requirement and the central limitation there is that the persons be peace officers.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Are there any peace officers within CSIS or in the military?

[Shawn Scromeda]

In the military there are military police. In fact, we made an inquiry with them just recently. Military police officers have not so far been designated under this.

With respect to CSIS, they are not peace officers, nor do they have the power of peace officers in accordance with this legislation.

For CBSA, I'm not aware of any designations. They have not approached us on this issue. I cannot tell you with absolute certainty whether individual officers there would--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

There could be CBSA officers who are peace officers, who are public officers.

[Shawn Scromeda]

Who would qualify, yes, but I can't tell you whether there have been any designations.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay. We can look at that more closely later.

I have another question. It concerns subsection 25.1(14), which has to do with the exception for the Controlled Drugs and Substances Act. Is that subsection saying that this designation and exemption under the law doesn't apply to a controlled buy, under the Controlled Drugs and Substances Act?

[Shawn Scromeda]

That's true. That is because Parliament--and further regulations pursuant to what Parliament had done--had already provided for exemptions under the CDSA, specific exemptions that predated the law enforcement justification. It was felt that we shouldn't get into an either-or situation with respect to those.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

In section 25.2 there's a requirement to file a report as soon as possible. Since there's no deadline, is it possible that a public officer or a person in charge would not file a report but just wait and wait until the issue came up? What's the incentive for filing the report? What if the act happened, the paperwork was done, but no report was filed for five years?

This would mean that in the public report we see annually, Parliament wouldn't get a chance to see the full array of designations. Am I correct in that?

[Erin McKey]

It's just a matter of interpretation to the extent that the requirement is “as soon as is feasible after the commission of the act or omission”. It really does put an obligation on the designated public officer, but in terms of operational constraints, clearly if they're in the middle of an undercover investigation they're not going to trot out with their notebook and make a report. However, barring, I would think, extenuating circumstances as the result of operations, the obligation is in the legislation.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

But I'm right that it could happen. There's no penalty in the act, there's no statute barring the--

[Shawn Scromeda]

It's subject to the interpretation of “as soon as is feasible”.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Yes. In other words, it's not feasible quite yet--which blurs to six months, which blurs to a year, which blurs to a year and half. Then, when somebody says, “We'd better forget about this sucker, because if we record it now, it's going to look really bad,” it's gone. So then we just leave it.

That could happen, right?

[Michael Zigayer]

It is a possibility, but there is a sanction. I think that's what we need to advise you of.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

What is the sanction?

[Michael Zigayer]

Ultimately, if your investigation is successful, you're going to bring charges against the individual. At that point, I suppose, as part of disclosure, the defence could ask, did you make such a report? I understand there's a description of the conduct of the police officer in the course of the investigation, and it appears he's engaged in an offence or has done something that triggers section 25.2.

So if it's not there, then I suppose it's possible, as Shawn was saying earlier, to ask the court to stay proceedings for an abuse of process. Again, it'll always be a question of the court weighing the conduct against the whole of the circumstances.

This is one thing that is stressed very much in the course of training. And I quite agree with you that it--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm just talking theory here. You don't have to take responsibility for the whole statute.

[The Chair, Conservative, Art Hanger]

Mr. Lee, your time is now up.

Thank you, Mr. Zigayer.

Ms. Freeman, five minutes.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

First, I would like to thank you for your presentation. I would otherwise have needed a training session. You've given a session which normally takes two days and managed to fit it into 20 minutes, which is quite short, very succinct and not comprehensive enough, as far as I'm concerned.

There are a number of things I'm not sure of and I would like to get some information. You mentioned something about disclosure of evidence. It there were a trial, would every action taken in accordance with these sections of the act be disclosed, or would there only be a right to limited proof, as is the case with the Anti-Terrorism Act? Would the act provide for full disclosure?

[Shawn Scromeda]

In response to that, the normal rules of disclosure would apply, and the rules of disclosure under Canadian law, pursuant to the decision, especially of the Supreme Court in Stinchcombe, are extremely broad. The standard, essentially, is one of relevance.

There are limited exceptions. There's no generalized exception created here, otherwise a statute or a common law, that says things that are subject to the law enforcement justification receive any exception from the disclosure requirement. In fact, the circumstances underlying the law enforcement justification would normally be subject to disclosure.