Justice Committee on June 1st, 2006

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

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

Thank you, Mr. Chair. Thank you, Mr. Copeland, for being here.

Are there any other jurisdictions similar to Canada--England, Australia, New Zealand--where a similar process has been gone through, where they introduced this kind of amendment to their existing criminal code and police procedures? If there are, has any one of them used judicial oversight?

[Peter Copeland]

I'm aware that Australia has a similar regime in place. I'm not familiar with the specifics of it or any difficulties that have been encountered. I don't believe the United States has a similar scheme at all, though.

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

Thank you, Mr. Chair. That's all.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Thompson is next.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you, and welcome.

The court decision made in 1999 is what brought it in to undercover work for a number of years--I think it was three years--before this legislation came into place to allow undercover work to take place. It's my understanding through testimony that during that period of time absolutely no undercover work was being done, and crime rather flourished, in the sense that it was on the rise. They didn't have to fear that particular part of it; now we have the legislation that enables them to go back to work.

I want to follow Mr. Ménard's line. I'd like to hear directly from you. If sections 25.1 to 25.4 were taken out of the Criminal Code, how would you suggest the undercover people work?

[Peter Copeland]

Going by the RCMP's experience in 2002-03, there would have been some false passports that weren't investigated, some tobacco-type and alcohol smuggling offences that weren't properly investigated, and some counterfeit documents that weren't properly investigated. Given the limited recourse that has been made to these provisions, at least by the RCMP, it's difficult in my view to see the pressing need these provisions were meant to fill.

Campbell and Shirose, the Supreme Court of Canada decision, presented a very narrow problem for the police in relation to reverse sting operations in drug cases. In part, it turns upon the very expansive definition in the Controlled Drugs and Substances Act of the offence of trafficking, because it's an offence not simply to sell drugs but to offer to sell drugs. Before these provisions were introduced into the Criminal Code, that's a problem that had been rectified by regulations under the Controlled Drugs and Substances Act.

It appears that, at least from the RCMP's conduct, the types of investigations justification is relied upon for are those where there really are victimless crimes, where it's a question of possessing contraband or a question of creating false documentation that's being uttered to the government, rather than crimes that generally have an effect upon third parties, like most of the other offences under the Criminal Code.

So I question the pressing need for these provisions. Given the manner in which they've been resorted to, it's difficult to see that they are a necessity at this time.

[Myron Thompson, Conservative, Wild Rose, AB]

Obviously they were a necessity at one time, because they operated under cover for years without this kind of legislation, and then of course a court decision brought that to an end. So things changed. Things are different at this time.

I'm not sure you answered my question. Undercover work is essential, according to the witnesses we've seen, on a number of cases. Now the drug act, of course, covers that operation, but other types of activities aren't covered, and that's why there was none until this legislation came into being. I don't think you really clarified for me how you would see undercover police working if this legislation were to be taken out of the Criminal Code.

[Peter Copeland]

This legislation is not directed towards undercover operations, and without these provisions I am certain that from 1999 to 2002 undercover operations were ongoing. What these provisions relate to is not undercover operations, but justified conduct that otherwise constitutes a criminal offence.

[Myron Thompson, Conservative, Wild Rose, AB]

If I may clarify, did we not hear a witness just say that all operations ceased? You said you were sure they kept going, and I believe we heard testimony to the opposite. Maybe I wasn't hearing things right.

There's another point I would like to make. Working undercover is a pretty massive deal with different things. Let me try to give you one situation.

You are going to infiltrate a gang, because if you get inside you're going to be able to do something about their activities. Maybe it isn't with drugs, so forget that part of it. You go through the initiation period and you've pretty well passed all the tests. But for a final final test, they say, “My friend, if you want to be part of this gang, there's a corner grocery store down here. We'll give you 10 minutes. If you go and rob that store and come back with the cash, you're in.”

What do you suggest they do?

[Peter Copeland]

First of all, I believe I've recognized in my comments or in response to an earlier question that the investigation of organized crime and large criminal organizations presents special problems, and these provisions are not directed towards organized crime or undercover investigations of organized crime. A more focused provision relating to the investigation of those types of offences would certainly be more palatable and in my view could also be reconciled with a scheme of judicial oversight.

In terms of the initiation period, and I don't mean to sound indelicate in relation to this comment, given the restrictions in subsection 25.1(11), which presumably members of criminal organizations can read, if they were to add a minor sexual assault into part of their initiation requirements it would be, in accordance with paragraph 25.1(11)(c), sufficient to weed out undercover officers, who would not be justified in committing such an offence.

So I'm not sure it's realistic to say the initiation period is the only thing these provisions are directed at.

[Myron Thompson, Conservative, Wild Rose, AB]

I'm not sure either, but I believe the police unit whose job that is do an excellent job of it, and I think they know how to deal with those kinds of things. This added protection is apparently very satisfactory to them. That's why I support this legislation.

Last, if I have time for one quick one—

[The Chair, Conservative, Art Hanger]

If it's very quick.

[Myron Thompson, Conservative, Wild Rose, AB]

You mentioned the word “balance”. Balance always troubles me when we talk about law and order: “What's the balance? We have to strike a balance.”

Well, what is balance? Is it fifty-fifty? I've been dealing with crimes against children for years. I'll tell you what I think the balance is. I think it's 5 to 95. Five per cent is, with the criminal activity, that you're going to have your basic rights, and they will be described to you right from the beginning; 95% of the effort is going to be toward the victims, potential victims, and children, and the protection of society.

I don't even know why we use the words that we have to “strike a balance”. I don't know what it means. Can you tell me what you meant when you said we have to strike a balance?

[Peter Copeland]

What I meant with respect to balance is the consideration that an independent judicial officer would make between competing rights and competing values that we as a democratic society hold dear to our hearts.

The right to privacy is certainly one interest; the right to bodily integrity; the right to be free from threatening conduct--these should be balanced against the state's legitimate interest in law enforcement. As part of that balance, an independent judicial officer ought to be reviewing the evidence in advance that the police seek to rely upon to justify the illegal conduct they wish to engage in.

It's not a question of the police making the decision themselves, which somehow comes to someone's attention, and stepping back saying, “What I was doing is justified under the Criminal Code.” There are real safeguards in requiring the state to ask in advance for permission and to justify what it is they seek to do, against the harm that may be inflicted upon other values we hold as important in our society.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Copeland and Mr. Thompson.

Mr. Maloney.

[John Maloney, Liberal, Welland, ON]

What is the frequency of use of these provisions? How often are they used? Can you give me a rough idea?

[Peter Copeland]

It appears they are used about a dozen times a year by the RCMP—never in the years 2002 and 2004 in British Columbia, and I was not able to obtain reports in relation to other provinces.

[John Maloney, Liberal, Welland, ON]

You would be more comfortable with some judicial oversight, but do these situations not occur with a sense of immediacy—fresh pursuit, or whatever—where judicial oversight just isn't practical?

[Peter Copeland]

Given the limited information in the annual reports regarding the RCMP, from the types of investigations where acts were justified under these provisions, and just applying my experience, it would seem to me these are not cases where a last-minute decision would have to be made by an officer who all of a sudden found himself in the middle of a criminal conspiracy that he had no prior notice of.

In the investigation of criminal organizations, whether it's in the drug context, in the migrant smuggling context, the tobacco or alcohol smuggling context, information is obtained, relationships are cultivated over a lengthy period of time, and there is ample time in the general course to put together a brief affidavit to provide to a judicial officer saying: “This is the type of investigation we are undertaking; these are the targets of the investigation; this is what we understand the nature of the offences they are committing to be. We propose making recourse to these provisions, including committing the following types of offences: possessing materials it would otherwise be illegal to possess, or fabricating false passports, to the extent that it appears to have been done in other investigations.”

It may be that in the course of a particular justified investigation, the designated officer or the person authorized after the judicial authorization to be engaged in that justified undercover operation may find himself or herself in a circumstance where criminal conduct has to be performed, or a decision made whether to engage in it or not, on the fly. There could be, in addition to the prior judicial authorization scheme, an exigent circumstances exception—that's also something that is not foreign to our system of prior judicial authorization—where the police are involved in an investigation and exigent circumstances exist such that they can't obtain a warrant without risking harm to individuals or the loss of evidence. They may act and then explain their conduct afterwards.

[John Maloney, Liberal, Welland, ON]

In relation to those exigent circumstances you refer to, should these clauses be left in to cover those situations, or should these clauses be tightened up with an exception that would allow the immediacy situation to be addressed?

[Peter Copeland]

In my view, as a matter of accountability and in accordance with the principles of the rule of law, the more information that is required to be presented beforehand in terms of the nature of the investigation and the types of illegal conduct contemplated, the better, because then the limits to which the state is anticipating violating the rights of others or perhaps engaging in victimless crimes--as seems to be the case in some of these investigations--are clear.

Then when something arises in the course of that investigation a day or 10 days later, depending upon the nature of the undercover operation, the individual comes forward, reports to a superior officer, and then reports to the court that circumstances existed and the offence had to be committed. Reasons are then given. That system would foster accountability and would foster appropriate scrutiny of police conduct. Parliament could then be certain that these exceptional powers could be reviewed and would be resorted to appropriately.

If somewhere down the road they needed to be changed--greater exceptions or, to prevent abuses, greater supervision--Parliament would have adequate information in order to make that decision.

[John Maloney, Liberal, Welland, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Maloney.

Ms. Freeman.

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

This week, we welcomed a group of individuals who shared with us their experiences in terms of enforcing sections 25.1 to 25.4. We observed that they proceeded very cautiously and that there had been no abuse. You yourself said that sections 25.1 to 25.4 had not been improperly enforced in British Columbia.

Having said that, even though everything seems to be in order, these provisions can be applied very broadly.

Mr. Thompson mentioned that these provisions have been invoked extensively in connection with the infiltration of organized crime. If we were to draw two distinctions with respect to sections 25.1 to 25.4 -- emergency situations and search warrants, as mentioned earlier -- would that address your concerns, since these provisions are used primarily to deal with organized crime? Aside from this, they are not used much.