Justice Committee on May 30th, 2006

[The Chair, Conservative, Art Hanger]

I'd like to call the meeting of the Standing Committee on Justice and Human Rights to order.

The order of reference on this day, April 25, is to review sections 25.1 to 25.4 of the Criminal Code, protection of persons administering and enforcing the law.

I'd like to thank you, gentlemen, for your appearance here.

We have the Royal Canadian Mounted Police, as well as a member from the Department of Public Safety and Emergency Preparedness Canada, Mr. Barry MacKillop.

Mr. MacKillop, I would like you to begin your presentation. You have approximately ten minutes. Whatever the wishes are of the committee, there could be questions following or you may wait until the RCMP make their presentations.

Mr. MacKillop, would you present?

[Barry MacKillop, Senior Director, National Strategies Division, Department of Public Safety and Emergency Preparedness Canada]

Thank you, Mr. Chair.

First of all, it's a pleasure to be here this afternoon. I'll take a few minutes, but no more than ten minutes, I promise, to cover the role of the department and the minister with respect to the designation protocol and reporting requirements as they relate to the law enforcement justification provisions.

On our role in terms of the Minister of Public Safety, he is responsible for designating individual peace officers or public officials with peace officer powers who fall under the purview of the Department of Public Safety. This currently applies to the RCMP in terms of the officers and senior officials and also includes CBSA, the Canada Border Services Agency, officers and senior officials in respect to the enforcement of acts for which the Minister of Public Safety has responsibility. Under emergency circumstances as well, there are 48-hour designations that can be issued by designated senior officials.

With respect to the second role of the Minister of Public Safety, it's the publishing of an annual report that details the number and nature of emergency designations issued during the course of the year; the number and nature of acts or omissions requiring prior authorization, and the nature of the conduct being investigated in respect of these; and the number and nature of acts or omissions, and the nature of the conduct being investigated in respect of them, where, due to exigent circumstances, officers proceeded without authorization from a senior official.

With respect to the designation process, so as to ensure that the law enforcement justification provisions are not subject to abuse or misuse, a strict designation protocol has been established which contains the following elements: eligibility criteria — who can be designated — eligibility conditions, the designation procedure or what steps need to be followed, and finally the required annual reports and the procedures which must be followed to produce them.

Senior officials and public officers are eligible for designation based on the following criteria.

They may be designated based on need. With respect to senior officials it may be based on written advice from the commissioner of the RCMP. As for public officers, they may be designated based on written advice from the assistant commissioner, federal and international operations.

They may also be designated based on their office. For senior officials, at present, the Office of the Assistant Commissioner FIO must be designated. In addition, both the Assistant Commissioner Criminal Intelligence Directorate and Chief Superintendent Drugs and Organized Crime are also designated. Public officers are recommended members of the undercover program pool and other special duty sections, for instance special entry, boat captains, etc.

There are also eligibility criteria in respect of training. Senior officials must have received training on sections 25.1 through 25.4 of the Criminal Code of Canada. Public officers need to have received training on the same sections as well as other training as and when required. This includes public officers with limited designation.

With respect to the eligibility conditions, designations are good for three years. They expire after three years unless renewed. Under subsection 25.1(10), persons acting at the direction of a designated public officer must be made aware of the provisions under this subsection.

With respect to revocation, senior officials, and public officers, if a designate no longer holds a required office or departs from the RCMP or no longer meets the criteria, the designation may be revoked, and the Minister of Public Safety is to be notified without delay. The minister must also be advised that the potential designate has been previously designated and be made aware of all relevant information that could have an impact upon the approval, as well as of additional conditions that could be applied to the designation.

With respect to the process and the designation procedures themselves, the Assistant Commissioner FIO, or the Assistant Commissioner CID and Chief Superintendent of Drugs and Organized Crime must be the first designation issued.

On recommendation of public officers, it's by the senior official in writing, using a standard designation request template. The requests are sent to the policing policy directorate of the Department of Public Safety. Two copies of these are sent, one with the officer's name and one without. They are then forwarded to the deputy minister and minister's offices respectively for approval.

If it is approved, the minister will sign the designation document. Copies that are retained by the department are copies of the one without the officer's name. The one with the officer's name is returned to the RCMP, and there are locator numbers that allow us to work with the RCMP if we had to join these two documents and make the link between them.

With respect to reporting, the following information must be collected by the Assistant Commissioner FIO and provided to the Department of Public Safety for inclusion in the minister's public annual report: the number and nature of emergency designations issued under subsection 25.1(6), whereby a senior official may designate a public officer under exigent circumstances with the caveat that such designations apply for only 48 hours; the number and nature of the acts or omissions requiring prior authorization, and the nature of the conduct being investigated in respect of them—this would encompass all actions that would likely result in the loss of or serious damage to property or where designates are directing another to commit an otherwise illegal act or omission—and the number and nature of acts or omissions and the nature of the conduct being investigated where in exigent circumstances officers proceeded without authorization from a senior official under subsection 25.1(9).

Concerning the annual reports themselves, there is an overview on page 7. Two annual reports have been tabled and published, one that covers the period February 2002 to January 2003 and one for February 1, 2003 to January 31, 2004. The report for 2004 will be made public in the near future; it's currently being finalized.

On page 7 you have an overview with respect to the number of temporary designations issued in those years. You'll notice in 2002 there were two for investigations into alleged offences, for assault, aggravated assault, assault with a deadly weapon, theft, causing a disturbance. For 2002 as well, for the number of times prior authorization was required and issued, there were eleven, and six in 2003.

Although the Department of Public Safety is not responsible for provincial annual reports, we provided an overview of published annual reports. Since 2002, provincial use of the law enforcement justification regime under sections 25.1 to 25.4 has varied considerably.

Currently, all provinces except Saskatchewan and Newfoundland have designated officers. Annual reports for all provinces (except for Newfoundland, PEI and Saskatchewan) have been published — some 2004 reports have yet to be published.

Reports for Alberta, BC, Ontario and New Brunswick are available online. You may also note that only Ontario and Quebec have reported incidents when prior authorization was required and issued: on two occasions in 2003 in Ontario, and on ten occasions in 2004 in Quebec.

That concludes our presentation on the designation process and the role of the department and of the Minister for Public Safety.

[The Chair, Conservative, Art Hanger]

The way I might proceed here, in dealing with the designation process, is.... I wonder whether there are any questions from the committee that might be pointed toward that particular issue.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, do you not want us to hear from all witnesses? Perhaps if we were to hear both presentations we could... I personally would prefer to hear both presentations.

[The Chair, Conservative, Art Hanger]

Technically, yes. The witnesses will all be here when we have general questioning. But I was curious whether the committee may have a question or two about the designation process, and they will be here for general questioning afterwards.

If the committee doesn't have a question, I have one as a point of clarification.

When we talk about these statistics reporting the number of temporary designations or prior authorizations, what are we actually saying? Is it that for certain undercover operations there has to be a broad or a specific designation to allow this to go on? What are we saying with these statistics?

[Barry MacKillop]

The ones that are public refer to those that were not designated initially by the minister. There were exigent circumstances requiring a rapid designation. The senior officer—in this case, Assistant Commissioner Souccar—may designate someone for up to 48 hours, so they can proceed with their operations. It would come back to the minister for authorization after that.

[The Chair, Conservative, Art Hanger]

You haven't listed other operations here—separate from emergency ones or those through prior designation—as a statistic. Or is this the common application, if you will, of the sections?

[Barry MacKillop]

It is the common application. The annual reports don't speak to the number of applications or number of designations per se, because there's a need to maintain officer security. As was requested when the act was adopted, we are simply reporting about emergencies or extraordinary circumstances, so that we can ensure that there is no abuse of the provisions.

[The Chair, Conservative, Art Hanger]

Thank you for clarifying that.

Now, from the Royal Canadian Mounted Police, we have Mr. Raf Souccar and Mr. Thomas Bucher.

Who will be presenting?

[A/Commr Raf Souccar, Assistant Commissioner, Federal and International Operations, Royal Canadian Mounted Police]

I will be presenting.

Thank you very much. Hello, ladies and gentlemen. I am pleased to be here with you this afternoon.

Good afternoon. My name is Raf Souccar. I am the assistant commissioner in charge of federal and international operations for the Royal Canadian Mounted Police. I'm pleased to be here to discuss subsection 25(1) of the Criminal Code, which is known as the law enforcement justification.

With me is superintendent Tom Bucher, who is the director, organized crime, and who deals with the day-to-day matters of the law enforcement operation. Between us, I'm hopeful that we will be able to answer all your questions. If we can't, we will undertake to get back to you.

I know that you have an understanding as to why this piece of legislation was required after the Supreme Court of Canada decision in Campbell and Shirose. I will get back to the case later in my presentation.

Within the next few minutes, I will attempt to explain how this legislation affects the RCMP and, specifically, how the RCMP proceeds with training, designation, re-certification, applications to approve the use of the legislation within criminal investigations, internal RCMP reporting requirements, the gathering of quarterly reports, the submission of annual reports, and other strict controls that we have placed on this legislation internally.

I will also provide examples of two scenarios, one that is hypothetical and one that is factual, which will demonstrate when the legislation may be utilized.

I will also attempt to familiarize the committee with the process the RCMP has implemented to ensure sound stewardship of this legislation.

Afterwards, I welcome any questions the members of this committee may have. I would only ask for the understanding of the committee in either excusing me from answering any questions that may be operationally sensitive or that I be able to answer those questions in camera.

The competent authority for the RCMP is the Minister of Public Safety. The minister has designated three senior officials within the RCMP. As assistant commissioner, federal and international operations, I am the first senior official; the second is Assistant Commissioner Mike McDonell, who is in charge of the criminal intelligence directorate; and the third is Chief Superintendent Derek Ogden, who is responsible for drugs and organized crime. These members are posted at our national headquarters here in Ottawa. In order to monitor and maintain the tight controls that we have imposed on ourselves relative to this legislation, the two other senior officials are only used in my absence.

As a senior official, I submit requests for designations of public officers to the competent authority, who, as I indicated, is the Minister of Public Safety. These designations may either be general or limited designations. It should be noted that not all police officers are designated under this legislation. For the most part, the only police officers who qualify under the RCMP internal policies are members of our trained undercover pool of resources.

It's important for me to pause for a second and just make sure that you have a clear understanding. When I talk about undercover, I'm not talking about police officers who are operating in plain clothes; I'm talking about police officers who are actually infiltrating criminal organizations, unbeknownst of course to the criminal targets. When I talk about cover personnel, I'm talking about the police officers who cover the undercover police officers.

General designations are for public officers who are part of the trained undercover pool of resources and who have successfully completed specialized training with respect to the law enforcement justification provisions. Limited designations are for other select public officers who have successfully completed training with respect to the law enforcement justification and have a specific duty, function, or trade skill that may require them to utilize these provisions. Here I'm talking, for example, about a pilot or a marine captain who may be required to either fly or sail with their lights off to avoid detection, thereby violating either the Aeronautics Act or the shipping act. For the purpose of their function, they have a limited designation for that very act or omission only.

The legislation stipulates that a senior official may designate a public officer for a period of not more than 48 hours, in exigent circumstances. Our internal policy directs that the division's criminal operation officer is required to review the circumstances and make a recommendation for approval to the senior official if they are of the opinion that by reason of exigent circumstances it is not feasible for the Minister of Public Safety to designate the member and that the member would be justified in committing an act or a mission that would otherwise constitute an offence.

In my capacity as a senior official, I have also made the request to the competent authority to have designations revoked. No revocations were made as a result of an abuse of the law enforcement justification. The request for revocations have typically been for members who have either retired or who are no longer part of our undercover pool.

The RCMP has implemented an initial two-day training session on the law enforcement justification. The first day of training is an in-depth review of the legislation conducted by the Department of Justice. The second day of the training is a practical component during which officers are given the opportunity to respond to a variety of scenarios that they may encounter in their role as public officers. The appropriate responses are set out by RCMP legal services.

At the end of this training, the public officer must undergo an exam that requires a score of 100%, and upon successful completion of the exam, I will request that the competent authority designate the public officer for a period of three years.

Prior to the expiry of a public officer designation at three years, the public officer must undergo and successfully pass recertification training. Once the exam has been successfully completed, I will request that the competent authority redesignate the public officer for an additional three-year term. It's also important to note that the three-year term is not imposed on us by legislation, but rather this is a policy that we've implemented within the RCMP to ensure that all our officers remain current of that legislation.

Once a member has been designated, he or she may be called upon to commit an act or mission that would otherwise constitute a criminal offence in furtherance of a criminal investigation. Should an investigation require the use of the law enforcement justification provision, the RCMP has implemented strict policy guidelines that direct that an application detailing the circumstances and providing supporting rationale be completed and forwarded for approval.

All acts or omissions proposed to be conducted by a designated member of the RCMP that would otherwise constitute a criminal offence are forwarded for initial review by the province's criminal operations officer, who is a senior officer at the chief superintendent level. The criminal operations officer reviews and confirms that the designated member is justified in using the provision and that the reasonable and proportional test has been satisfied.

The division criminal operation officer may then approve the act or omission as long as it does not involve loss or serious damage to property or the direction of a civilian agent. If approved, the designated member committing the act or omission must, as per the legislation and training provided, be cognizant of the provisions of section 25.1 of the Criminal Code and be satisfied that all of the conditions and the reasonableness and proportionality test have been met.

I can provide you with a hypothetical scenario. An immigration and passport unit is investigating an organized crime group that is believed to be producing and selling false passports. In order to obtain evidence of these offences, the investigative unit requests the authority be granted for a designated member to sell a box of blank passports to this crime group. The application to use the legislation in this scenario would likely not be approved. Not only is it not reasonable and proportionate, there are also other investigative means available that have not been explored, such as attempting to purchase false passports directly from the criminal group.

It's important here also to understand that I'm not suggesting that the use of this legislation is a last resort, but certainly in evaluating whether or not to approve this operation, I would take into consideration the risk of losing a box of blank passports. Although this would be covered by the legislation, I have to weigh the risks associated with it as well, the reasonableness and proportionality of using this technique in order to put forward the investigation and approve the investigation, and in this instance I would likely be inclined to explore other avenues.

Acts or omissions that involve loss of or serious damage to property or directing a person to commit an act or omission must be forwarded through channels to a senior official for approval. Once I as a senior official receive the application, I will again personally review the circumstances for compliance with the provisions of the law.

If I approve the act or omission, a written authorization will be forwarded to the investigative unit detailing the conditions that I have imposed on the authorization.

Where prior approval is not feasible, a designated member may commit an act or omission that involves the loss of or serious damage to property or direct a person to commit an act or omission when the designated member believes, on reasonable grounds, that the grounds for obtaining the authorization exist but it is not feasible under the circumstances to obtain it and it is necessary to preserve the life or safety of a person, prevent the compromise of the identity of a public officer acting in an undercover capacity or a human source/agent, or prevent the imminent loss or destruction of evidence of an indictable offence. Every act or omission in these cases that would otherwise constitute an offence must be reported in writing to the senior official as soon as possible.

For your knowledge, the RCMP has not used this portion of the legislation to date.

In addition to the legislative requirements of filing reports with the senior official, RCMP policy requires that every member who commits an act or omission or directs the commission of an act or omission must, under the law enforcement justification, as soon as feasible submit a written report to the division undercover coordinator. The undercover coordinator must immediately forward the report to the director of organized crime branch, who prepares the quarterly and annual reports.

The annual reports are submitted to the competent authority. They contain the mandatory information set out in section 25.3 of the Criminal Code and in addition provide evaluation information about the law enforcement justification regime. The annual reports for 2002, 2003, 2004, and 2005 have been completed and submitted as required.

In terms of a common case scenario, I will not be able to comment on specific details of an ongoing investigation where the legislation has been used, but I can set out for you an example of an investigation that is concluded where a senior official has authorized the use of this legislation.

In this case, an organized crime group was believed to be involved in making and selling Canadian counterfeit currency. The investigative unit in Montreal acquired the services of a civilian agent and made application to utilize the agent, accompanied by a designated member, to attempt to purchase counterfeit currency from the crime group.

In this instance, the civilian agent is entrenched in the criminal organization. As such, we use that agent in an undercover capacity, if you will, directed by one of our designated members to infiltrate that criminal organization.

A senior official granted the authorization to permit the agent and designated member to purchase the counterfeit currency. The designated member, who was also an undercover operator, and the agent purchased a large quantity of Canadian counterfeit currency shortly thereafter.

During the course of this investigation the senior officials granted a total of four authorizations. In this same case the criminal operations officer for the division authorized the designated member on five other occasions to purchase items offered for sale by the crime group. Of these five authorizations, two were not acted upon.

These authorizations permitted designated members to purchase and possess counterfeit currency, false passports, false social insurance cards, and false driver's licences from members of this criminal organization.

The RCMP purchased, as evidence, approximately $250,000 of counterfeit currency, false passports, false social insurance cards, and false driver's licences from subjects in Montreal and Toronto. Searches conducted at residential addresses resulted in the seizure of equipment used to falsify documents, enabling investigators to lay criminal charges against those responsible for the operation.

As this scenario has illustrated, by utilizing the law enforcement justification in circumstances such as this, investigators are better able to identify and attempt to infiltrate the organized crime groups involved in the actual production of the counterfeit currency and counterfeit identification cards, thereby dismantling the criminal organization.

The law enforcement justification has allowed the RCMP to combat organized crime and terrorism in a way that would not have been possible prior to the enactment of this legislation.

The 1999 decision of the Supreme Court of Canada in Campbell and Shirose held that police were not immune from prosecution or liability for unlawful conduct committed in good faith during the course of an investigation. The court ruled that if immunity were necessary, it was for Parliament to provide for it in statute.

The ruling affected the efforts of law enforcement agencies, as common investigative practices previously used for many years were no longer possible. We were able to go out and buy counterfeit money, for example, and that was one of the things that we used to do. Section 450 of the Criminal Code indicates that it is an offence to possess or purchase counterfeit money. That decision brought that type of operation to a halt, although we were buying it with the intention of seizing the money and taking the money out of circulation and the person distributing it. Although it was our position that we were living within the intent and spirit of the legislation, the Supreme Court of Canada was very clear that if it is an offence for a member of the public to do it, it's an offence for the police to do it unless there is an exemption in place for us. They actually said that if Parliament wants you to do this type of thing then it should provide for it in statute; hence the law enforcement justification.

In many types of criminal organizations and terrorist-related investigations, it is sometimes vital for undercover police officers to pose as those engaged in criminal activity. If no immunity were in place to commit acts or omissions that otherwise constitute criminal offences, police officers would be severely restricted in their investigative capabilities. This legislation has not been abused. Strict controls have been implemented within the legislation itself, and even more within RCMP internal policies. The legislation does not provide a means for police officers to be above the law. Rather, the legislation allows law enforcement agencies to conduct further criminal investigations within a very clearly set out legislative framework. This legislation has provided us with the tools to get back to work.

I'd like to thank the committee for allowing me to participate and provide an overview on how this legislation is presently being used and how this legislation has greatly assisted law enforcement in effectively carrying out its duties.

Along with my colleague, Tom Bucher, I would be pleased to provide any further clarification or answer any of your questions. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you very much, Assistant Commissioner; it was an interesting presentation. Now we have a chance to question the effectiveness of this legislation.

[Myron Thompson, Conservative, Wild Rose, AB]

I have a point of order, Mr. Chairman. I would like to get a feeling from the people present here today. I was running through my mind a list of questions I would like to ask, and I'm not sure this would be the proper place to ask them. Are we going to be able to know the difference, or will the people making the presentation be able to refuse to answer if it's not for the good of the...whatever? I see some pretty sensitive stuff here.

[The Chair, Conservative, Art Hanger]

I take note of your comment and concern and I know that if we cross over any line, the assistant commissioner will point that out and not answer the question unless it's in camera, I believe. At least, if it's going to jeopardize any particular point in an investigation, he won't go there.

Is that correct, Assistant Commissioner?

[A/Commr Raf Souccar]

Yes, it is, Mr. Chair. If we get into sensitive territory, given that the testimony here will be made public, I would prefer to either refrain from answering it or go in camera.

[The Chair, Conservative, Art Hanger]

Does that answer your question, Mr. Thompson?

[Myron Thompson, Conservative, Wild Rose, AB]

Will we be able to go in camera if it would be for the good of what we're trying to accomplish? That's not difficult to do, is it?

[The Chair, Conservative, Art Hanger]

I would suggest, yes.

[Myron Thompson, Conservative, Wild Rose, AB]

Okay, that's all I need to know.

[The Chair, Conservative, Art Hanger]

Okay, the questioners. First on the list is from the Liberals, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

As the chairman has said, our purpose now is to try to make the act better. From the purpose of a review, it was great to hear how it works, but I'm wondering if any of the witnesses actually have any suggestions as to how we could improve the act. If you want to do this in camera, that's fine. But especially from people at the operational level, if they want to do something, are there are some ways or minor adjustments or any adjustments we could do to make it work better?

[A/Commr Raf Souccar]

I'm very pleased with the legislation. I think it has controls on it that I believe need to be in place. From an RCMP perspective, we've even tightened our policies to a greater extent than the legislation sets out. We've reduced and kept the number of senior officials to three, with myself being the main senior official and the other two only to approve authorization requiring senior official approvals in my absence.

We've wanted it and we're very pleased that it has actually some controls on it. It's worked very well for us. You may hear from, and I have spoken to, other law enforcement agencies that have a concern over the amount of time it takes to designate public officers. In the RCMP case, from our competent authority, we get a very quick turnaround, so that doesn't cause us a problem. With some agencies, I understand it's taken as much as a month and a half to get an undercover operator designated, and of course that causes operational problems.

[Larry Bagnell, Liberal, Yukon, YT]

So if a situation requiring one of your undercover officers were to come up tomorrow, and the particular officer wasn't designated, how long would it take to designate him?

[A/Commr Raf Souccar]

If there's an urgent matter, as a senior official, I can designate him for 48 hours, but even so, I have not had to use this provision to any extent. We like our operations to be planned well in advance in order to have good control of them. But to answer your question, we've had a turnaround of as little as 24 hours.

[Larry Bagnell, Liberal, Yukon, YT]

So you have no suggestions as to how we might improve the act?

[A/Commr Raf Souccar]

Unless Tom wants to jump in, at this point we're very satisfied with the legislation as it stands.