Justice Committee on May 9th, 2006

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chair.

I was a member at the House when Bills C-95, C-24 and C-36 were studied. This was time when there was confrontation between various community groups and organized crime was wide-spread. In the city where my riding is located, Montreal, there were major concerns.

I have a broad question to ask you, and a more focused one. Could you share information with us on the presence of this provision in the Criminal Code? Putting aside questions of principle, I can understand that there are some people who believe this provision should not exist and others who think it is crucial to carrying out investigations. I would like to know just how useful this provision has been in conducting police investigations and what effect it has had on law enforcement officials' ability to foil organized crime. Has it really been worthwhile?

I know that in the 1990s, apparently 33 organized crime groups existed throughout Canada. Of course, there were the Hell's Angels, the Rock Machines, and others you are familiar with. The Canadian Association of Chiefs of Police was quite convinced it did not have all the necessary tools to fight organized crime. The police chiefs were very upset with the Stinchcombe decision which made the disclosure of evidence mandatory. We can come back to that.

Could you tell us about the impact this provision has had on the ability to conduct police investigations and defeat organized crime?

[Shawn Scromeda]

I will ask my colleague Michael Zigayer to answer your question.

[Réal Ménard, Bloc, Hochelaga, QC]

He is from Atomic Energy Canada, is he not? I cannot say that I quite understand, aside from the fact that you may be an explosive official, the link between atomic energy and...

[Michael Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I will try and control myself.

I am from the Canadian Nuclear Safety Commission.

[Réal Ménard, Bloc, Hochelaga, QC]

You are from the Canadian Nuclear Safety Commission?

[Michael Zigayer]

I work for their legal services department.

[Réal Ménard, Bloc, Hochelaga, QC]

Oh, okay. It was hard to understand, Mr. Chair.

[Michael Zigayer]

But I am still a colleague of the two witnesses here.

I think there are two ways of answering your question. First, I cannot give you the answer you are looking for, insofar as we cannot tell you how useful this tool or protective mechanism has been in protecting police officers working undercover. We do not have that information. As my colleague Mr. Scromeda pointed out, law enforcement officers would be in a better position to respond to that question.

However, you will perhaps recall that when we appeared before the committee a few years ago for consideration of Bill C-24, several representatives from the police force came to tell you about the impact of the decision in the Campbell and Shirose case. I think it was the Toronto Chief of Police, Mr. Fantino, and probably the RCMP Commissioner, who said that several investigations had to be stopped or put on hold because police activities may have led to offences. The decision was made that it was better to stop or suspend the investigations.

To a certain extent, it is up to the police to answer. Nevertheless, the police were given back the authority to engage in that sort of investigation after the situation in question.

[Réal Ménard, Bloc, Hochelaga, QC]

Okay.

I may have another two or three questions to ask you. Basically, what I am hoping is that this will convince us we need to get the Canadian Bar and the top-echelon police chiefs back before the committee.

For argument's sake, let's say I authorize an investigation, for example in east Montreal; I am a designated officer and I give a policeman the go-ahead to launder money in order to infiltrate an organized crime group. The provision in question may apply, from what I understand, because money laundering or drug trafficking would have been involved. What I am interested in knowing about are other cases when, due apparently to some sort of emergency, a designated person has not given authorization for such an offence to be committed. Those that are opposed to such a provision fear a reduction in accountability; they are afraid that practices may be engaged in which break the law.

There is one thing that would have been useful this afternoon. Usually, the Department of Justice provides the committee with a helpful information kit before the meeting. The department has previously given us copies of decisions handed down or annual reports. I am not complaining, you are all fine folk. I imagine it is because you were asked to appear at the last moment and that your ability to bounce back may have you headed for the senior public service. No one knows what the future holds.

Can you give us any examples of emergency situations which have been invoked which may reassure or give cause for concern to those who would challenge the provision? Was my example very relevant? If it were an exam, what would you give me out of 10? Remember, I can always get it reviewed.

[Shawn Scromeda]

I'll address the last one, with respect to materials. The purpose of today's presentation is just to get this kick-started in the sense of providing an overview, to give this committee a chance to assess its own direction with respect to their review. We certainly will discuss and be responsive to further requests for materials, as are frequently provided for the course of review, but we have handed out very little today just for the purpose of giving an overview of the provisions themselves.

With respect to the specific examples you raised, actually, in each case, in some ways they are not, because separate legal provisions other than the law enforcement justification apply to each of those examples. To both money laundering and to drugs there are separate provisions. With respect to drugs, there are, as I mentioned, the Controlled Drugs and Substances Act police enforcement regulations. With respect to money laundering, there are specific separate exemptions granted under the code for those. They were granted before the law enforcement justification came into place.

So the particular fact situations you mentioned are covered by other provisions and would not be subject to the example you raised of emergency---

[Réal Ménard, Bloc, Hochelaga, QC]

Could you give us a generic example?

Has my time expired?

[The Chair, Conservative, Art Hanger]

Your time has expired, thank you.

Mr. Scromeda, please conclude your response.

[Shawn Scromeda]

With respect to other hypothetical situations that would be covered under the law enforcement justification sections, the requirement for pre-authorization applies to only two circumstances: when there's a likelihood that property will be destroyed or damaged seriously, or when the law enforcement officer is giving direction to agents in the field. The emergency situations in which you would normally have to require that authorization, but don't, are essentially the exigent circumstances I mentioned.

[The Chair, Conservative, Art Hanger]

That's fine. I believe you covered that point.

Thank you, Mr. Scromeda.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you for your presentation.

I'm going to be rather blunt. I studied this legislation a bit before coming here, and you guys are on a short notice for being here. I have to say your presentation was really good. The only trouble is I'm not the sharpest knife in the kitchen. If I retain five per cent of what I heard, it will be a miracle, because you went through it quite rapidly.

Getting to the point of this legislation as far as I'm concerned, Canadian citizens really want to see good laws, safety, and protection. My question is, in your opinion, with the changing of criminal activity and its increasing intensity in terms of becoming more technical and sophisticated—I'm thinking of the Internet with regards to child pornography, the explosion of that horrible industry, and people who are going to be investigating and fighting these new activities, which make the news regularly—is the legislation we have here going to protect our enforcers to the extent that they're going to be able to do a good job while dealing with these new things? It seems I read more complaints in a lot of these cases against authority than the criminals.

I'm speaking as a ordinary guy in the street who says, what's going on? Do you think this law as written is sufficient to deal with what's happening in today's society, or do we need to look at it closely and consider changes?

I would like your response.

[Shawn Scromeda]

I certainly encourage this committee to look at it closely. Certainly ideas for changes are among the things that could come up in the course of this review.

To respond directly to your question, the types of investigations you're talking about are exactly those for which this law enforcement justification was designed. In general, this law enforcement justification is not something that the ordinary police officer on the street will be using.

It's most useful for complex investigations into organized crimes from the examples you give: terrorism and other related complex undercover operations. It is a subset of police officers and other law enforcement officers who will receive the designation. It was especially designed to be used in those circumstances. I hope it's proven to be a useful tool. I'll certainly leave it to the law enforcement officers, who will likely be providing testimony, to further inform you about how useful they feel it is, whether they feel there are gaps, and whether on an operational basis it requires further assessment.

I think that's as far as I can go in responding to that question.

[Myron Thompson, Conservative, Wild Rose, AB]

Go ahead.

[Michael Zigayer]

I was going to add that Shawn, Erin, and I have been engaged in training undercover police officers and prosecutors across the country. Their reaction to us lets me conclude they find this very important. This is something they need as a tool to get out there and do the type of work you've been talking about.

Perhaps the very important work your committee will do is not through us today, but through those in the law enforcement community identifying other gaps in the legislation. We did bring it forward three years ago. The purpose of the review is to see if we've missed anything, and hopefully we can improve it in the future.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you. That would have been my next question.

I would think there has to be some extensive training. Just based on what I've heard today, good grief, you're going to have to put some people through some pretty strenuous training exercises to fully understand what they're capable of and what they're not capable of. How is that going? You are one of the responsible people for that, so how is it going? Is it successful?

[Shawn Scromeda]

We did provide extensive training.

Just to respond to your opening comments about the complexity relative to the speed over which I went over the law, the presentation that I provided in essence was an abbreviation of a two-hour lecture. I felt that perhaps two hours would be a bit too long for my opening remarks.

[Myron Thompson, Conservative, Wild Rose, AB]

I agree.

[Shawn Scromeda]

When we have provided this training to police officers—and we have done it across the country; Erin, Michael, and I, and others went across the country for months to provide the training—it was a two-day training course. The opening part of it was two hours. We went through questions and answers on individual aspects of it for the remaining part of the day.

[Myron Thompson, Conservative, Wild Rose, AB]

Do you have follow-up with the people you're training on a regular basis? Once they get into the field, are there any conversations that take place so that you could ask the people how it is going? You're saying we have to wait for these officials to come in order to answer the questions a couple of members over there asked and that I'm asking. I'm just wondering if there isn't any ongoing following of the training sessions when they actually get into the field and work.

[Shawn Scromeda]

That was an aspect addressed in the training. In our training, even for the two days, we only presented it as an overview really of operating in this section.

I'll just go into the second day. The second day was taken up with the police forces themselves undergoing operational scenarios under that, but a point we emphasized during training was that even after training was finished, that didn't mean that when questions came up about the law enforcement justification they should just proceed and say they think they knew it. We strongly encouraged any operations using the justification to be done in consultation with counsel to answer any specific questions relating to that. We are just the central Justice counsel who are providing the general training. There are other Justice counsel across the country to whom questions may be addressed about individual operational circumstances.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.