Justice Committee on May 3rd, 2007

[Réal Ménard, Bloc, Hochelaga, QC]

Not yet.

Not yet.

[Rick Dykstra, Conservative, St. Catharines, ON]

Okay, thank you.

I guess what I'm trying to get clear and what we're trying to understand is that, overall, there's definitely a focus on the concept of specifically trying to identify drive-by shootings in a much more detailed way, which is certainly something we support. There's no question about that. The difficulty is the link to defining it under the code and defining it as a criminal organization.

It seemed to me, from what you were saying, that the two were mutually exclusive.

[William Bartlett]

No. Drive-by shootings, in terms of the context in which they're committed and what they're all about, are usually quite directly linked to the primary criminal activities of these organized crime groups: drug trafficking, extortion, protection rackets, a variety of things. The drive-by shootings are part of an effort sometimes to establish turf, which is important to being able to control the drug trafficking in a given area or to deal with rivals in the field, or simply to create an air of intimidation in the community, so that these groups can carry out their criminal activities. So there is usually quite a direct link with the drive-by shooting.

The drive-by shooting doesn't bring the direct financial benefit. But what the courts have said is that the drive-by shooting produces, nonetheless, a material benefit for the organization if it means that the intimidation they create or the direct action taken against a rival gang has fortified their drug trafficking activity or whatever else they're engaged in that does bring them a financial benefit.

The requirement of material benefit, including a financial benefit, has been interpreted as being this indirect fortification of their ability to carry out the crimes that then bring a further benefit.

[Rick Dykstra, Conservative, St. Catharines, ON]

And the material benefit part would not include the drive-by shooting aspect of it?

[William Bartlett]

It would include the drive-by shooting where that drive-by shooting was designed to fortify the gang's position within a given territory, so that it can carry on drug trafficking or extortion or whatever else it's primarily engaged in.

[Rick Dykstra, Conservative, St. Catharines, ON]

So from that perspective, I get the sense that you're identifying that there isn't a need to join the two together, because in fact, in case law, and in the way the courts and lawyers approach this, or the way cases are fought, the links are made in court as it stands already.

[William Bartlett]

Yes. We can certainly make the jurisprudence available to the committee, if that's your wish, but yes, the link has been made in a couple of major cases.

[Rick Dykstra, Conservative, St. Catharines, ON]

I think that's significant, if I understand this part of Mr. Ménard's motion, from the perspective that this is what he was trying to achieve in terms of the Criminal Code, but which in fact already exists in case law.

[William Bartlett]

Yes. That's not to downgrade the difficulties that police and crowns face in making those links. Proving the link to a criminal organization, we recognize, is a very challenging matter for law enforcement and crowns.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Dykstra.

I'm now going to move to Mr. Lee. You're on the list, Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Well, I think we've had sufficient discussion of item (a).

Can we go to item (b)? I'll just say, as an aside, that as much as Monsieur Ménard is well intentioned—and we all are here—this particular mechanism of moving a substantive motion, a relatively complex policy motion, to the committee has the effect of circumventing the House's private members' business procedures. I appreciate that it's well intentioned, but I really have second thoughts about whether it is in order.

In any event, let's continue with the substance. I'm going to ask this question. In item (b), if there are warrants for electronic surveillance, why would GPS electronic monitoring not fall within that envelope? Why does there have to be a special case made for GPS system monitoring? I would have thought that GPS system monitoring would fall easily within the rubric of electronic monitoring or electronic surveillance.

Could you comment on that, Mr. Bartlett or Mr. Taylor?

[William Bartlett]

Certainly it does, and what I believe Mr. Ménard's motion is aimed at is not that there needs to be a provision to provide for this. There is a provision that makes warrants that authorize the use of the GPS system. It's generally under the description of tracking devices, and GPS is one of them, but there are other forms of tracking devices.

I think the point of the motion is that there is currently a 60-day time limit on these tracking device warrants--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

But there is not for electronic surveillance warrants?

[William Bartlett]

Yes, for electronic surveillance warrants there is--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

A one year.

[William Bartlett]

Electronic surveillance is a little different because it comes under the general warrant provision and doesn't have the same limitation. But a tracking device does have a limitation. Wiretaps are probably the best comparator here. Wiretaps are normally for 60 days, but if the case for which they're sought is a criminal organization offence or a terrorism offence, they can be for up to one year.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Is there such a thing as a warrant for electronic surveillance?

[William Bartlett]

It's under the general warrant provision.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

A general warrant for what?

[William Bartlett]

It's simply called a general warrant and it covers several different kinds of access to what people are doing, including electronic surveillance.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

So when Mr. Ménard's motion refers to warrants for electronic surveillance, he's just talking about general warrants?

[William Bartlett]

He's talking about general warrants, yes, but the GPS ones are tracking device warrants.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

And there is a specific provision in the code governing tracking?

[William Bartlett]

Yes, section 492.1 of the Criminal Code covers tracking devices.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

And there's no way they could ever be considered general warrants?