Evidence of meeting #7 for Justice and Human Rights in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was police.
Conservative
The Chair Conservative Art Hanger
Thank you, Ms. Barnes.
I have one question for you, Mr. Webber. You have spent some time examining these sections. They've been in our code now for three years; you've obviously studied them quite well and looked at a lot of what could happen, but obviously you have drawn some conclusions, I would hope, from other jurisdictions. What other jurisdictions have similar legislation, and what are the complaints?
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
I'm afraid I won't be able to provide much more information than you received from the Department of Justice or the RCMP on that. I'm aware, as they are, that Australia has some provisions similar to this one. That's the only one that I'm aware of, but I don't have any information as to how it is working in practice over there.
Conservative
The Chair Conservative Art Hanger
I'm sorry. I thought you were studying this particular issue. Were you crafting a thesis or a report in reference to these sections?
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
In fact, the report itself is already out and has already been published. My thesis is in the same area, constitutional law, but it doesn't draw on these particular provisions themselves.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
First of all, I want to thank you for your presentation.
I have just one comment to make in response to what my distinguished colleague, Mr. Thompson, said earlier. Like you, I believe that section 25.1 is extremely broad in scope and that the members of the RCMP whom we met have shown tremendous wisdom by setting parameters around the way in which they carry out their duties. That is very much to their credit.
However, I believe it us up to us, as parliamentarians, to exercise the power that we have. It is up to us to pass laws and regulations. They're wise enough to enforce them properly, but it is our responsibility to establish the appropriate parameters.
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
I fully agree with you, Ms. Freeman.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Thank you, Mr. Chairman.
Mr. Webber, the question I have for you is quite a simple one. As a lawyer, I know that this material is often used in legal practice, and I can tell you that over the three years that sections 25.1 to 25.4 have been used, defence lawyers have generally shown courts of law that there was a problem regarding the collection of evidence. If any mention is made of the fact that this discredits our justice system, all the evidence is automatically set aside.
So, parameters already exist. There is a great deal of case law setting out parameters for sections 25.1 to 25.4. As soon as a police officer in any way tries, with or without authorization, to collect more evidence than what has been asked of him or authorized, the judge generally sets aside the evidence, and very often, the accused is acquitted.
Have you considered that aspect? In reviewing section 25.1 to 25.4, it's important to consider the fact that all judges use that method to ensure proper control over the enforcement of section 25.1 to 25.4.
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
Indeed, sections 25.1 to 25.4 have no effect on matters relating to evidence. They stay the same, whether we discuss section 25.1 or not.
On the other hand, if I were a defence lawyer and my client had been accused of an offence under the Criminal Code or the criminal law, and I knew that the police used these sections, the question would be why the police officer believed the act to be reasonable and proportional. The issue then would be the police officer's credibility, perhaps three or four years after he had committed the act in question, because these undercover operations can take a long time. You can spend a lot of time collecting the evidence you need where organized crime is concerned. That police officer would testify before a judge and his credibility could be questioned, because the events had taken place three or four years earlier.
However, if the police officer had prior written authorization, that would constitute evidence. The Crown prosecutor could then say that he was allowed to commit this act because it been authorized by a senior official or by a judge.
If I were a criminal lawyer and had to defend a client, I would really like these sections, either way. Once the trial was underway, I could say that these sections pose major problems and do not adequately limit police powers. I would attack the credibility of the police officer who committed the act under these sections -- in other words, the very constitutionality of the regime. I would say there are so few conditions laid out in these sections that just about anything goes, and that that is unconstitutional.
I believe that for the proper conduct of operations carried out under these sections, Parliament should consider limiting the scope of the law to avoid the kind of attack that a defence lawyer could mount under the current regime.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
Let me first say that it's great to have some informed public policy feedback from a Canadian-based foundation, such as this one, founded in memory of the late prime minister, former Prime Minister Trudeau.
This particular area of law was enacted because we are a rule-of-law jurisdiction, and the court found that police officers didn't have the right to break the law when they were enforcing the law. I suppose we can all recognize that for centuries police have had to indirectly break the law in order to enforce the law, such as when they speed or go through a stop sign or use an assault to detain someone in an arrest, and we've accepted that. In many other rule-of-law jurisdictions around the world, that's ongoing. I don't believe they've tried to codify this particular area of law.
Mr. Thompson made this point. How much codification are we going to have to do here before we codify ourselves into a library and we forget about law enforcement itself?
One of your suggestions is that these sections apply just to organized crime. Can I suggest to you that it's really difficult to define what organized crime is? I mean, in theory, it's a minimum of two people working together to break the law for the purpose of profit. But given the difficulty of defining organized crime, as you think we might like to consider here, isn't there enough constraint in the use of these sections, buried in the section I'm going to cite here? You'll recognize it; it's 25.1(8)(c). In other words, it says that the means used by police, under these sections, have to be proportional to the nature of the offence or the criminal activity being investigated.
That section is intended to impose constraints on police in the use of these sections. So do you feel that it's too weak? Should this stuff come before a judge for scrutiny at some point in some case, don't you think these sections provide enough constraint?
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
Thank you for your question.
I should clarify one thing to start off ,and that is that I'm not here as a delegate of the Trudeau Foundation. I am a proud member of the Trudeau Foundation, but I don't pretend to speak for it today. I just wanted to clarify that.
You mention speeding, going though stop signs. You're absolutely right to identify that on a daily basis, more than we'd be willing to recognize on any given day, police do break the law. In fact, they have to do so. If someone is speeding, the only way the police are going to be able to catch them is by speeding themselves.
What concerns me is that if we don't restrain this act to exclude examples like that, in other words to leave that to say it's currently being regulated by the common law, we don't think the Shirose and Campbell judgment goes as far as to exclude those types of instances. What you might have is as follows:
If I'm a criminal defence lawyer, I'm going to say my client has been caught for speeding. The police officer followed him and was speeding and went through a number of red lights. The police officer was not designated under section 25.1. Therefore, not only have the police broken the law in speeding and in running through a red light, but the police have broken the very law that would have authorized them to do so.
So perhaps we're going to be using this law in designating traffic cops, which we might choose to do, but I don't think that's what is currently going on. The testimony of the Department of Justice and the RCMP suggested, in fact, that's not what they're using it for. So my concern is that if we're not going to be limiting the scope of this act, it might be seen as a necessary condition for all sorts of things we wouldn't otherwise think it is meant to apply to. That is one part of my answer to your question.
For the second part, you refer to section 25.1(8)(c). You're absolutely right, that will provide important constraints. My concern is that we're asking the officer himself or herself to make that judgment call. They should, but someone should make that judgment call with them before they're faced with that very situation.
In answer to your colleague's question, I allow that there will be urgent situations in which the police officer will have to make that call by himself or herself. In the absence of those urgent situations, let's look at section at 25.1(9), which requires not only the officer himself or herself committing the acts, but also a senior official to authorize him or her in writing beforehand. That would be setting up a second constraint, which would assist the police officer. The police officer certainly wouldn't have to think of these tests and legalities at the very moment, which we might not want. He'd say, “I've already been authorized. I can go ahead and do this without worrying that after the fact I might be judged to have not been acting on reasonable grounds.”
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Lee.
Mr. Bagnell, you have time for one quick question.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I have another question. I sympathize with your feelings on after-the-fact reporting. I still have two concerns about the pre-authorization, in light of the conversation I just had with my colleague.
A crime is a crime, and we want to stop crime. The Supreme Court didn't say the police need authorization for serious crimes before they commit them. They said they need authorization to deal with any crimes. So why would we not want to stop crime and leave that open?
My other concern about the pre-authorization--and I mentioned this when the police were in--is in the case of dealing with something serious like organized crime. There have been instances in the past of an infiltrator in a police force. This law doesn't apply just to the RCMP; it's a lot broader than that. But any information, any sense of pre-authorization, can be a tipoff to organized crime. If you have a high-ranking official embedded, then they're going to have a lot of access to a lot of information and be able to find this out and then put our undercover people in jeopardy.
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
Indeed, that's a concern. I'm certain the RCMP, in its current operations, has devised certain safeguards in that respect. I won't be able to speak to that, obviously, not having worked for the RCMP, and especially not having worked at the levels where this type of information is available.
I do know, however, in the testimony provided by the RCMP, that there are only three senior officials who have been designated, so already they, themselves, have decided, “There are going to be only three of us, and potentially only three of us who we can mutually trust”. Therefore there's already a restriction there, and I'm sure they've implemented certain safeguards in terms of the collecting and safeguarding of that information.
With respect for your point that the Supreme Court said there's no justification to commit crimes and Parliament must authorize it, it's a fair point. In fact, we'd have to study together the judgment in more detail to say how much exactly do you want it authorized. Do you want us authorizing high-speed chases? If so, I think we have to look at every instance together of where the police would have recourse to breaking the law in order to better enforce it, and identifying those.
My difficulty here is that the provisions say pretty much anything goes as long as you, public officer, or you, police officer, think that it's just and reasonable under the circumstances. I think there'd be a way of not taking away the importance of this act for their operations but at the same time of restraining its scope, at least as it appears on the statute books, to reflect how they're using it in practice.
Part of it is to say, listen, it's not a practical problem, because in practice, the police are using this only when necessary. The other difficulty, I think, from a constitutional perspective, is that when this is going to be challenged, if it is going to be challenged, the courts are going to be more interested in what the law says than in the way it's being applied.
There have been many instances when lawyers stand up before the court and say, “Don't worry, court, I know it looks like it authorizes everything, but we're only using it under these circumstances”, and the court said, “If you're only using it under those circumstances, let that be reflected in the act”.
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Are you concerned—I think you made reference in your comments to this—that although we have a public record, through annual reports, of designations and authorization, and acts or omissions by public officers, we don't have a public record in those annual reports of acts or omissions committed by persons designated or directed by public officers. In other words, all of the stuff that happens at the hands of third parties directed by a public officer, properly authorized, those acts or omissions do not show up in the public report.
Should we be concerned about that, or should we just regard it as the flotsam and jetsam and the slush of this area of activity? Or should we be focusing on it as something that we really do need to know?
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
Perhaps I was unclear before. There are three areas that require reporting under the annual reports: the first is that in an emergency designation, in other words, where the minister hasn't designated someone, a senior official can for 48 hours; the second one is where there's a prior authorization to commit crime, or what would otherwise be crime, effecting serious property damage; and the third one is where there's an authorization to allow a third party, in other words a non-police force member, to commit this. So this is your example of an informant.
What I'm suggesting is that every other case--in other words, every other case of acts that would not be crime that don't involve an informant and that don't involve serious property damage--is excluded from public reporting. We have no idea how many of these have happened.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Yes. I'm referring to, in the public reports, the annual report. Section 25.3 requires the listing of the number of designations—
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
That's correct.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
—the number of authorizations, and the number of times that acts or omissions were committed by public officers, but it does not contain the number of times acts or omissions were committed by persons directed by public officers. The absence of that statistic may put us in a position where we're not able to colour what's really happening out there.
I don't want to tie the hands of law enforcement, but it's not clear to me why acts and omissions committed by persons directed by public officers are omitted from the annual report. Maybe you hadn't noted that, or maybe you're noting it now, I'm not too sure. But having—
Trudeau Scholar, Pierre Elliott Trudeau Foundation, Oxford University, As an Individual
I'll take you right now to paragraph 25.1(9)(a), so I'm reading:
(a) is personally authorized in writing to commit the act or omission—or direct its commission
In other words, this would be directing another person to commit the commission, so let's remember that, and now let's go to paragraph 25.3(1)(b), as you were referring to:
(b) the number of authorizations made under paragraph 25.1(9)(a)
So currently there has to be reporting for the authorization of a non-policeman, in other words, an informant, as in your example. That is currently reported.