Justice Committee on May 9th, 2006

[The Chair, Conservative, Art Hanger]

I trust that's the way it works, yes.

Would you provide that for the whole committee then?

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chair.

Moving back to the issue of subsection 25.1(11) on the non-justified conduct, could I ask you if there has been any common law growth in terms of what can be interpreted as non-justified in terms of other abhorrent behaviour or behaviour that wouldn't be considered becoming, such as torture or anything else within those realms that is not already mentioned in the provision? Has there been any judicial interpretation that would enhance what's already in the provision to that effect?

[Shawn Scromeda]

There hasn't been, actually. There has been essentially minimal judicial interpretation of this specific provision. Really this case has not been extensively considered, in any judgment, so far. It simply may be too early. Some of these complex investigations involving such techniques take years to complete, and further court proceedings sometimes take years to proceed.

Has there been specific judicial interpretation of that term, enlargement of it, or consideration? No, we're not aware of it.

The terms used there, however, independently, aside from section 25.1, are matters of judicial interpretation, such as what constitutes intentional causing of death or bodily harm. Quite outside this context there are judicial interpretations, because those are referred to in other offence provisions in the act. But to answer your question itself, no.

[Patrick Brown, Conservative, Barrie, ON]

I have another question.

We paid some attention earlier to a question you asked with regard to disclosure, and obviously the relevance issue that was enhanced with Stinchcombe is quite broad. Are there any concerns in the justice department that this will enhance the delays we're seeing in terms of disclosure? Obviously court dates aren't set until disclosure is complete, with people before the courts being given sometimes two to one or three to one dead time. One of my initial concerns would be, if we're enhancing that, there would be a cause for pause. Is there any anticipation that this could enhance the delay?

[Shawn Scromeda]

I don't think the provisions themselves are what would enhance or cause additional delay. It's the fact of the police using complex investigational techniques in ongoing investigations that sometimes themselves take years and generate a great deal of documentation, whether inside here or outside, or whether these provisions exist or not, that is an issue. Complex investigations create a great deal of information.

That information, as you referred to earlier, is subject to the rules in Stinchcombe and broad definitions of relevance that the courts have put in. Certainly, that is an issue. It is the exact issue that you raised, that when you have this amount of information, the requirements of conveying it to the defence further to the disclosure obligation sometimes has taken a great deal of time.

I'm not sure it's one that is caused by these provisions or made worse by these provisions, but yes, certainly it is an issue in the justice system.

[Patrick Brown, Conservative, Barrie, ON]

Is there any opportunity within the provisions--and I guess this would be more common law in interpretation--to not make this a necessary piece of disclosure before the setting of the trial date? If this is complex and it is one of the stumbling blocks towards providing complete disclosure, is there a way to separate the evidence and disclosure, aside from what would be the rationale for utilizing this clause?

[Shawn Scromeda]

Then you're really talking about the requirements under the rules of disclosure. Stinchcombe was a constitutional case; there is a constitutional right for disclosure. So if you were to take an approach statutorily excluding certain information that met the standard of relevance, you might be restraining what is in fact a constitutional right of a defence to receive disclosure at that point.

That particular suggestion hasn't come up. There has been a Justice Canada document with respect to disclosure reform. It was published in November 2004, discussing issues with respect to disclosure reform--how disclosure could be made more effective and efficient. That particular idea was not part of it, but there are some guidelines. If you would like us to ensure that the committee gets a copy of that consultation document, I could ensure that you get it.

[Patrick Brown, Conservative, Barrie, ON]

I would appreciate that.

In your initial assessment, do you think this would have any--

[The Chair, Conservative, Art Hanger]

Mr. Brown, excuse me, your time is up.

To allow every member to speak once, we'll go to Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, many of my questions have already been answered regarding the training, and I'm expecting the handout will provide some more light on that.

First, I'd like to thank you for your very thorough presentation. I think every member of the committee has found it informative.

I do have a couple of outstanding questions on training.

You mentioned that there would be no designation received without first receiving the training. You've also mentioned that you've gone across the country a number of times providing this training.

Who is receiving the training? Is it senior officials? Is it undercover officers? Is it both? Is it members of this public oversight body? I'll be asking for some more detail on the training, and the second part of the question is to get a little bit more information on this public oversight body.

The effectiveness of the legislation will be based on the quality of the training. You've said you provide a two-day overview. When we get to the nuts and bolts of the legislation, to make sure it's being used properly, who provides that additional training? There is a turnover of officers who are dealing with this, so how often is the training provided?

Do you understand my questioning? A little bit more information on the training and on the public oversight body, I think, would be helpful, .

Thank you.

[Michael Zigayer]

We began our training of various criminal justice participants, prosecutors and law enforcement, very shortly after the legislation came into force, early in 2002.

In June 2002, in fact, we had an opportunity to speak with prosecutors from across the country. We invited them to Ottawa for a four-day session, two days on Bill C-24 and two days on Bill C-36. Since then we've hit the road. I've spoken to provincial prosecutors, local police, and RCMP. And it's not just the three of us; quite a large group of prosecutors and counsel within the Department of Justice has been involved in this. The last time I gave the course--about a year ago in Montreal to RCMP undercover--one of our Justice colleagues from the Montreal regional office presented along with me. As you heard from Mr. Scromeda, it was a two-day course. Our participation was limited to the first day. The second day involved mostly scenarios, and we didn't need to be there for that part of the program.

So in terms of training, up until January 2003 I believe more than 1,700 individuals, almost 2,000, were trained. This included municipal prosecutors, federal law enforcement, federal prosecutors, provincial law enforcement, municipal law enforcement--basically a good cross-section of law enforcement.

I remember very well training some Fisheries Canada investigators in Vancouver. I don't know if they had been using the techniques or if they had recourse to this scheme, but in the investigation of illegal fishing, for instance, one thing you might do is buy a fish. In those sorts of activities, you never know; when you're offered the fish, you might be offered an illegal firearm of some kind that was stolen or unregistered or whatever. The undercover officer who has received this type of training and has received the designation may say, “Thanks, I will take that.” You've just expanded the investigation, and you can pursue it.

So it's not just pure organized crime. Sometimes it's smaller things. You never know when they might come up. You're not dressed in your police uniform and someone offers you something, some kind of contraband, and because you have this law enforcement justification protection, it helps you.

Sorry, I went off on a tangent there.

Since the beginning of 2003, as I indicated, there has been more training. Perhaps when officials from the RCMP appear before you, they can tell you what the totals are now.

Erin.

[Erin McKey]

I just wanted to add something that I don't think we've mentioned yet. Closely after the entry into force of section 25.1, the Department of Justice created a training video as well on not just the law enforcement provisions but generally on Bill C-24 as a whole. This has been widely distributed to crowns and police officers across Canada.

To the extent that you're talking about refreshing training, or turnover, there is also a CD-ROM available that does a brief run-through. It is not as extensive, obviously, as the on-site training we provide, but it is available to law enforcement crowns.

[Shawn Scromeda]

We can ensure that you get a copy and an example of that training video as well. That can be distributed as part of the materials.

[The Chair, Conservative, Art Hanger]

That's fine. Thank you.

I have a list here still.

Ms. Barnes, I will start with you. I do have others who would like to get in before the end. Since you've already been up once, perhaps you wouldn't mind keeping it short. Thank you.

[Sue Barnes, Liberal, London West, ON]

Thank you, Mr. Chair. My question is very simple, actually.

Usually when we see new provisions come into effect like this, they don't come in isolation, in just one jurisdiction. Often other Commonwealth jurisdictions or democratic jurisdictions have something comparable. I would like you to tell us whose we are close to and whose we are disparate from. Have any of these jurisdictions subsequently retracted these provisions, or are they all relatively new?

Perhaps you could also let us know if any of you were personally involved in the drafting of these provisions or when they came into effect here.

[Shawn Scromeda]

Just to answer your second question first, both Michael Zigayer and I were directly involved in the development of these. Drafting is done by specialized legislative drafters--

[Sue Barnes, Liberal, London West, ON]

I realize that.

[Shawn Scromeda]

--but we were actually the instructing counsel for those legislative drafters on this provision.

Your first question is a longer one and is perhaps a broader one with respect to other international jurisdictions and how they handle an analogous situation. I can give you a roundup of some other countries. I can't do a complete around-the-world tour, as in fact I don't have the legal knowledge.

I preface all of this by saying I am a Canadian lawyer, so any assessment of other legal systems has to be viewed with a little bit of caution.

I can tell you the jurisdiction we are probably the most analogous to in respect of our law enforcement justification is Australia. That is because Australia faced a situation very similar to ours. They faced it before we did in the case of Ridgeway, where their supreme court actually made a ruling very similar to the one our Supreme Court ruled in Campbell v. Shirose, and they were left in a similar situation, looking for statutory authority for what had been expected to be long-standing police activities that were thought to have been justified under common law.

They proceeded with a justification regime along somewhat similar lines to ours. Ironically, it was actually in part based on discussions that went back and forth between us when they had seen what we were in the midst of doing with the police enforcement regulations. Their overall statutory scheme, which I emphasize is one that's shared because criminal law in Australia is shared--it's mostly a state law matter and is dependent on individual states--is a generalization of our police enforcement regulations to broader circumstances. That was their approach, but it is broadly analogous to what we have done in its ultimate legal purpose and effect. That is effectively because they faced a similar situation and there is commonality between our legal systems and even policy exchanges between us.

Another interesting country, of course, would be Great Britain, the United Kingdom. To the best of my assessment, the situation in the United Kingdom is probably best analogized to the situation Canada was in prior to the judgment in Campbell v. Shirose, where there has been no judgment that I'm aware of. I would like to update my research on this, and certainly this is something we can come back to, but there's been no judgment I've been aware of where their House of Lords has indicated that a common-law law enforcement justification doesn't exist. They had an opportunity I think in a 1996 case, Latif, to look at this, the House of Lords.

It's a similar situation in many ways to what happened in Campbell v. Shirose in that it's also a drug situation, and I think there was, similarly, a motion for exclusion of evidence rather than abuse of process. But it might have been abuse of process as well. I would have to double check on that. But once again, the general allegation was that the police, or customs officers in that case, had broken the law in enforcing the law. Their House of Lords, without adopting a similar approach to ours, rather than a broad discussion of the principle of police justification, simply said, “We do not consider this case to be an abuse of process”, leaving it open.

[The Chair, Conservative, Art Hanger]

Mr. Scromeda, thank you.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I have two quick questions to ask you, if I may. First, let's pretend we are at a training session. For purely educational purposes, could you give us a general example, without referring to a specific investigation? We understand that you are bound by rules of confidentiality. But, for the sake of the rookie members of Parliament, who weren't around for Bill C-95, Bill C-24, or for Bill C-36, give us a general example of how these Criminal Code provisions have been useful to police forces or to law enforcement organizations.

Second, earlier, Mr. Derek Lee asked a question about defence. Do you think it would be possible for you to table with the committee a list of public organizations which have designated officers, so that we get a sense of the scope of this section?

We can see you're not used to working for the usual corporate attorney's fees, because you take your time.

[Shawn Scromeda]

Both those questions, unfortunately, are perhaps better addressed through further witnesses. Perhaps we can undertake to help provide the information in cooperation and consultation with them, but I do not have a list right now to share with you of all the different organizations for which the law enforcement justification has been used. That would include municipal police forces across the country. I don't have a list of police forces in Quebec, for example, nor are they obligated to give me such a list of situations in which designations have been done.

[Réal Ménard, Bloc, Hochelaga, QC]

But what about federal investigations? You said...

[Shawn Scromeda]

Do you want just federal at this point? Just to make it clear, the law enforcement justification is available to police forces under provincial jurisdiction as well. Designations are possible, and in fact have been made, but we don't have a list of every single municipality.

[Réal Ménard, Bloc, Hochelaga, QC]

It would be useful in order to get an understanding of the scope of this section.

[Shawn Scromeda]

Do you want just federal, or are you actually looking for a complete list?