Justice Committee on May 30th, 2006

[Superintendent Thomas Bucher, Director, Organized Crime, Federal and International Operations, Royal Canadian Mounted Police]

I can only reiterate the same. I'm seeing this more in an operational context, in the daily operational plans that come in right across the country from various units. As Assistant Commissioner Souccar stated, we really haven't seen that there's been any type of bureaucratic process. It's not burdensome. It's serving its purpose very well, and to date, from an operational perspective, it's working very well.

[Larry Bagnell, Liberal, Yukon, YT]

When you designate someone for three years, my understanding is that, over and above that, there has to be authorization for the specific event that's occurring.

[A/Commr Raf Souccar]

That's correct. Again, the three-year designation is self-imposed. From that point on, the law says that if it's a designated police officer, the police officer can then commit any act or omission without any approval, really, other than an act that causes bodily harm, violates sexual integrity, or perverts the course of justice. Directing an agent or doing something that causes loss or serious damage requires the approval of a senior official. But to do such things as purchasing counterfeit money, passports, tobacco, or alcohol, the law allows police officers to go ahead because they have been designated.

Our policy has tightened that and requires police officers to seek approval from the criminal operations officer--who's a chief superintendent, a senior executive within the organization--and the criminal operations officer in the division.

[Larry Bagnell, Liberal, Yukon, YT]

So if you've tightened it, does this mean that in maybe another police force a person could be designated for three years—and I know it's self-imposed—and be involved in some operation, and then be walking down the street and come upon something that wasn't part of their assigned undercover work, and still use that designation in that instance?

[A/Commr Raf Souccar]

That's correct. That would be a violation of our policy, but not a violation of the law. We appeared in court before, on one occasion that I recall, because there had been a violation of policy but not a violation of the law, and that did not cause us a problem. Again, the policy has been tightened in order to reflect the seriousness that we attribute to undercover operations as a whole.

[Larry Bagnell, Liberal, Yukon, YT]

But it may not have been tightened--just for our own consideration--in other organizations.

I think this will be my last question. There are other circumstances and laws--the Criminal Code, etc.--that allow police officers to break the law, in self-defence, or, I think, under the drug law. Could you make any comments on the categories and maybe on recent incidents, if you're aware of any?

[A/Commr Raf Souccar]

The first one that comes to mind is the Controlled Drugs and Substances Act. In fact, that's the very act that was put in place after the Campbell and Shirose decision. It allows us to traffic in drugs, to import drugs, to export drugs, and so on. The CDSA is excluded from the law enforcement justification, in that the CDSA has its own exemption scheme.

[Larry Bagnell, Liberal, Yukon, YT]

Are there any other instances?

[A/Commr Raf Souccar]

The Proceeds of Crime Act, for example; exemption from liability for the arrest of the wrong person; arrest for breach of the peace; use of force to suppress a riot; possession of automobile master key; possession of property obtained by crime; money laundering; proceeds of crime--those types of offences that have an exemption scheme within them for law enforcement. There are several. I can provide you a copy of this.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you. Maybe you could table that with our clerk.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you very much for your appearance here today.

As legislators it is our duty to understand how Criminal Code provisions brought in several years ago — at a time when we were trying to fight organized crime as effectively as possible — have helped us reach our goals.

You cited an example of a police investigation in which you had to make use of these provisions. I have three questions to ask you so as to get a basic understanding of the issue.

Can you tell us whether in all cases when officers or other persons are authorized to act pursuant to justification provisions, it would invariably be for undercover operations, or can it be for other types of operations?

[A/Commr Raf Souccar]

Thank you for your question.

To my knowledge, as I explained, the justification has been used for pilots, for example, to permit them to...

[Réal Ménard, Bloc, Hochelaga, QC]

Have their lights off.

[A/Commr Raf Souccar]

That is correct, so that they can fly with the lights off. However, we use these provisions mainly for infiltration operations.

[Réal Ménard, Bloc, Hochelaga, QC]

Let us take the example of organized crime. Every year, the Canadian Security Intelligence Service tables its annual report. Various bills have been passed to increase our effectiveness. Sometimes we fail in this attempt, and other times we were closer to giving you certain tools.

Would you say that without provisions of this type, some police investigations could not be carried out? In other words, we are no longer asking whether this is a good or a bad thing. May all the committee members assume that without these provisions in the Criminal Code, some police investigations could not be carried out and it would be impossible to bring some people involved in organized crime to court? Is that correct?

[A/Commr Raf Souccar]

Yes. If you do not mind, I will continue in English to ensure I'm properly understood.

This piece of legislation is actually essential for us to be able to carry out our efforts against organized crime. Members of criminal organizations talk very little on the phone. When they do talk, they talk in code and it leaves us guessing. So part 6, interception of private communication, although it is a tool and one that we do use, is not always very effective. Surveillance is another technique. Again, we follow people around; we see them going from point A to point B, again leaving us guessing as to what's being discussed, and what the purpose of the meeting may be, and what actually they've picked up from one location to take to another location.

So we find ourselves having to try to infiltrate these criminal organizations, most of the time with a civilian agent because a lot of these criminal organizations will not trust anybody they haven't known since childhood. So we end up using agents and directing these agents to act under our direction.

The Campbell and Shirose decision brought our undercover operations to a halt. Other than the Controlled Drugs and Substances Act, which came into being in 1997, we didn't require very many exemptions to our undercover operations to do our work. With that piece of legislation, we saw our undercover operations almost come to a standstill after the Supreme Court of Canada decision. Once this legislation was passed, we were able to pursue it.

[Réal Ménard, Bloc, Hochelaga, QC]

I do not want to get into details about criminal investigations, because I certainly understand that they're confidential. The Supreme Court even ruled that you are not required to reveal your sources or the name of informers. However, if we use generic terms—that was useful to you — can we talk about money laundering, counterfeiting, and people operating within criminal biker gangs? If we had to explain how these provisions were mainly used, could we use these three generic terms, or could you give us some other indications along these lines?

[A/Commr Raf Souccar]

Thank you for your question.

We used this legislation in the case of biker gangs. Our investigation showed that these individuals are involved in drug trafficking most of the time, and the Controlled Drugs and Substances Act allows us to infiltrate these groups without using section 25.1.

I find we've used it the most in the areas of immigration and immigration law, passports, satellite cards for intercepting signals, tobacco, alcohol. It's the regular operations, ones that we had been doing for years and years, that came to a halt. I recall seeing lately, if memory serves me right--Tom may correct me--a lot of immigration-type operations, with false passports and identities.

[Réal Ménard, Bloc, Hochelaga, QC]

I have a final question about the disclosure of evidence. A genuine justice system must ensure that investigations are effective but that the evidence is disclosed. I know that police officers are not very fond of the Stinchcombe decision, however, since this is part of our jurisprudence, we have to deal with this reality.

Can you assure us as regards the disclosure of evidence that the principles of natural justice and procedural equity will be followed and that the way in which the investigation is conducted will have no impact on the access to information to which the parties involved in the trial are entitled?

[A/Commr Raf Souccar]

Absolutely not; you're absolutely correct.

The disclosure is legislated. Stinchcombe has been very clear. We follow it. The no-go areas, the three things very clearly set out in this piece of legislation that the police cannot do under any circumstance, are pervert the course of justice, of course, and this would fall under it; violate the sexual integrity of an individual; and cause bodily harm.

To be honest with you, I didn't like to have it in the legislation, and not because it shouldn't be there or because it's something we would want to do; we just didn't want to have a line drawn in the sand where it could create a loyalty test of some sort.

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

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

I'll pass, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thanks for coming today.

I want to make sure I have this right. According to the statements in your presentation, practices previously used for many years were no longer possible. The practices that you did for many years are now back, intact, and you're doing what you used to do many years ago. They stopped because of the Supreme Court decision in that case. The legislation came in during 1999.

Exactly how much of a lapse was there between the enactment of the legislation that put you back in business, so to speak, and the time you had to stop those actions?