Evidence of meeting #8 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 officers.

On the agenda

MPs speaking

Also speaking

Tamra Thomson  Director, Legislation and Law Reform, Canadian Bar Association
Gregory DelBigio  Chair, National Criminal Justice Section, Canadian Bar Association
Denis Barrette  Legal Counsel, Ligue des droits et libertés
Pierre-Louis Fortin-Legris  Case Officer, Ligue des droits et libertés

3:30 p.m.

Conservative

The Chair Conservative Art Hanger

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

We are continuing our review of sections 25.1 to 25.4 of the Criminal Code, pertaining to the protection of persons administering and enforcing the law.

Today we have witnesses appearing from the Canadian Bar Association and la Ligue des droits et libertés. Welcome.

Who might be beginning the presentation?

3:30 p.m.

Tamra Thomson Director, Legislation and Law Reform, Canadian Bar Association

I'm with the Canadian Bar Association and will say a few words, and then Mr. DelBigio will continue on.

3:30 p.m.

Conservative

The Chair Conservative Art Hanger

Please go ahead, Ms. Thomson.

3:30 p.m.

Director, Legislation and Law Reform, Canadian Bar Association

Tamra Thomson

Thank you, Mr. Chair, and honourable members.

We're very pleased to appear before you today on your review of sections 25.1 to 25.4 of the Criminal Code.

The Canadian Bar Association was very active in commenting on the original Bill C-24 before this committee, so we are very happy to get another opportunity to share our views with you.

The Canadian Bar Association is a national association, representing 36,000 lawyers across Canada. Our statements today are specifically on behalf of the criminal justice section of the Canadian Bar Association. I should point out that the members of that section include both defence and crown lawyers, which makes it unique among criminal law groups.

The mandate of the Canadian Bar Association is to improve the law and the administration of justice, and it is in that optic that we make our comments before you today.

I'd like to ask Mr. DelBigio, who is chair of the criminal justice section, to speak to the substantive parts of our letter, which you have before you.

3:30 p.m.

Gregory DelBigio Chair, National Criminal Justice Section, Canadian Bar Association

Thank you.

The Canadian Bar Association recognizes the public interest in having well-funded law enforcement. The Canadian Bar Association recognizes the importance of public safety. However, the Canadian Bar Association also recognizes the critical importance and fundamental importance of the respect for constitutional rights and the rule of law.

We say that sections 25.1 through 25.4 are inconsistent with the rule of law. There's a risk of misuse. As you are well aware, the provisions permit, for example, an assault by a police officer or agent. And there's a fine line between assault and assault causing bodily harm. There is heightened concern because of the use of agents and because of inadequate mechanisms of accountability.

When we had the opportunity to comment upon Bill C-24, we expressed various concerns, which included that the bill was not restricted to organized crime or terrorist-related offences. That concern continues today. The provisions apply to the enforcement of any act of Parliament.

We continue to be concerned with the rule of law. Our Supreme Court of Canada has made it very clear that the ends do not justify the means, that the evidence or convictions may be obtained at too high a price, and that there are inherent limits on policing and law enforcement. The CBA continues to have these concerns.

We believe that section 25.1 is antithetical to the rule of the law and undermines the integrity of the administration of justice and public confidence in the fair and proper administration of justice by condoning intentional and calculated violations of law by agents of the state. We recommend that the provisions be repealed in their entirety, or, at a minimum, that they be amended so as to not apply to agents, so that they would apply only to public officers.

If the sections are not repealed we would recommend that the use of the provisions be dependent upon prior judicial authorization. And further, we would recommend that there be more detailed reporting and record-keeping requirements to allow for transparency and effective oversight.

With respect to the rule of law, it's not sufficient to simply ask whether there exists a law that permits certain acts on the part of the state or its agents. That is a part of the rule of law. But the rule of law demands scrutiny of the content of law as well. Is the law fair? Is it just? Does it comply with constitutional norms? Are there adequate mechanisms of control and oversight over investigative techniques?

When the sections in question are used to investigate or gather evidence against an individual, the individual's rights, as protected by section 7 of the Charter of Rights, are engaged. However, the investigative techniques in question go far beyond the rights of the individual or the interests of the individual. All people in Canada have an interest in effective policing, a safe society, and maintenance of the rule of law and the accountability of police.

With respect to the use of non-police officers or agents, we are concerned because of the inability to effectively control such persons. It is well recognized in common experience and also in the courts that agents are often themselves criminals, as was recognized in a decision of the British Columbia Court of Appeal, which said that informants or agents will often be persons of questionable character who are involved in the very operations that are the subject of a proposed investigation, and for that reason a skeptical attitude with respect to the information that is supplied by such persons is necessary.

We say that police agents may too readily disregard the constraints of law or any direction given by a police officer, and the skeptical attitude that was referred to by the British Columbia Court of Appeal in accepting information supplied by an agent should apply equally when considering whether an agent will willingly and scrupulously follow the direction of a police officer.

We are concerned that the section operates without prior independent judicial authorization. The Criminal Code provides for the authorization of many investigative techniques, including the interception of private communications, search warrants, general warrants, production orders, warrants to take bodily substances for DNA analysis, warrants to take impressions such as foot or hand impressions, or tracking devices. All of those may be used only with prior judicial authorization.

The constitutional importance—indeed, the constitutional requirement—of that was recognized by the Supreme Court of Canada, who held in a case called Hunter v. Southam that it is only when it is demonstrated that the interests of the state are superior to the interests of the individual that certain investigative techniques can be used, and that this determination can only be made by a person who is at a minimum capable of acting judicially, and that there must be an independent judicial officer.

We say the duties of a police officer are such that they are constitutionally incapable of conducting the required delicate and objective balancing of competing interests. A police officer is not an independent judicial officer and should not be making the decisions that are required for the operation of these provisions.

We are also concerned with the adequacy of the existing reporting requirements. On page 4 of the letter that has been provided, I refer to some of the language that is used in an annual report of the RCMP. It states:

In one instance, the RCMP was conducting an investigation into a drug distribution network. Justified acts or omissions that would otherwise constitute Criminal Code offences relating to the possession of stolen goods, theft over $5,000 and conspiracy to commit an indictable offence were committed.

This description is simply inadequate. It is impossible to know the nature of the drug distribution network in question and impossible to know what is meant by the “acts or omissions” relating to theft over $5,000 or relating to a conspiracy to commit an indictable offence.

Meaningful review and accountability can only be achieved if the required report provides enough detail to understand what has occurred and whether it complies with statutory and constitutional requirements.

We suggest that the reports include, at a minimum, a brief description of the offence or offences being investigated and the act or omission committed by the police officer or agent, along with a brief description of that act for omission. Further, the report should include whether an investigation resulted in charges being laid. That's important in order to determine whether these provisions are being used in a way that is of any value. If these provisions are being used and there are never any charges, it is reasonable to ask: why are there no charges resulting?

Finally, we recommend that there be parliamentary reviews conducted every three years to ensure ongoing accountability. It is our understanding that no court has yet had the opportunity to consider these provisions or the circumstances in which these provisions have been used. The insights that might be offered by a court will, of course, be of interest to subsequent reviews that might be conducted.

Thank you.

3:40 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. DelBigio.

Your Canadian Bar Association represents, as you point out, 36,000 lawyers, and others. I wonder if I might ask, on a point of clarification: have there been any complaints about these particular sections from any of the 36,000 lawyers, prosecutors, articling students, or notaries?

3:40 p.m.

Chair, National Criminal Justice Section, Canadian Bar Association

Gregory DelBigio

Has the Canadian Bar Association received any complaints?

Well, the Canadian Bar Association expressed the concerns it did with respect to the previous bill and the Canadian Bar Association has seen fit to be here today.

More importantly, though, the instances in which the provisions have been used have not been before the courts and in that way have not been made public, to our knowledge. So really, there is very little basis upon which to make complaints.

We are here with ongoing concerns.

3:40 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you, sir.

Now, Mr. Barrette.

3:40 p.m.

Denis Barrette Legal Counsel, Ligue des droits et libertés

My name is Denis Barrette and I represent the Ligue des droits et libertés. I am going to turn it over first to my colleague, Pierre-Louis Fortin-Legris.

3:40 p.m.

Pierre-Louis Fortin-Legris Case Officer, Ligue des droits et libertés

Good afternoon, Mr. Chairman.

Allow me to begin by introducing the organization we represent. The Ligue des droits et libertés is an independent, non-partisan and non-profit organization. It was founded in 1963 by a number of legal scholars and intellectuals concerned with the protection of human rights in Canada, notably Professor Frank Scott, Mr. Pierre Elliott Trudeau, and Mr. Jacques Hébert.

The goals pursued by the Ligue des droits et libertés are the defence and promotion of the rights recognized in a variety of international human rights treaties, as well as in charters that apply here in Canada.

We are a member of the International Federation of Human Rights Leagues. From time to time, we appear before UN committees charged with oversight and enforcement of international human rights treaties.

I would like to know whether I can provide you with a short brief in the form of notes which, unfortunately, could not be translated into English. With your permission, I will distribute it to Committee members.

3:45 p.m.

Conservative

The Chair Conservative Art Hanger

I believe your brief is only in French?

3:45 p.m.

Case Officer, Ligue des droits et libertés

Pierre-Louis Fortin-Legris

Yes. It will be translated as soon as possible.

3:45 p.m.

Conservative

The Chair Conservative Art Hanger

Once the translation is done, then we will certainly distribute it.

3:45 p.m.

Case Officer, Ligue des droits et libertés

Pierre-Louis Fortin-Legris

Okay. I will ask your permission, then, to distribute a text we brought that is in English and French.

3:45 p.m.

Conservative

The Chair Conservative Art Hanger

Sure, that would be acceptable. Certainly.

3:45 p.m.

Case Officer, Ligue des droits et libertés

Pierre-Louis Fortin-Legris

Thank you.

I'll let my colleague, Denis Barrette, present now.

3:45 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Chairman, on a point of order, we have these witnesses here and I think they would prefer to engage the committee en français. I would encourage them to do that immediately, without speaking English. We're fully capable of operating in both languages. French is our language. It's your language. Let's get on with it.

3:45 p.m.

Conservative

The Chair Conservative Art Hanger

I think, Mr. Lee, they were concerned about a distribution that they wanted to make.

If there is one that you might have in French and English, certainly feel free to distribute that. We'll wait for the main one until it's translated. I know that process is taking place.

Please continue.

3:45 p.m.

Legal Counsel, Ligue des droits et libertés

Denis Barrette

I will be very pleased to follow Mr. Lee's suggestion.

First of all, we fully agree with the Canadian Bar Association. At the Ligue des droits et libertés, we have essentially the same concerns and find ourselves confronted with the same legal structure which, unfortunately, is not well known to the public. Very few people are aware of section 25.1 of the Criminal Code. I am certain that nobody who has spoken to you on the street--none of your actual constituents--has ever asked you what is going on with this section of the Criminal Code.

I would just ask you to imagine the following scenario. Imagine an unnamed country or State where the laws allow the police to engage in assaults, wiretapping and a whole series of violent offences, such as threats, kidnapping, hostage taking, forcible confinement, and searches which, in actual fact, turn into break and entry for the purposes of committing theft--and those are just a couple of examples. The police would have complete immunity. Such acts would be deemed justified for investigative purposes. Imagine that in that society, human rights are respected, but since that law exists, there is always the possibility that someone will use it, because of the way it's drafted.

That is precisely the situation in which we find ourselves. Even if we want to believe that the police generally act in good faith, how could we ever forget, particularly in Quebec--at least I hope not--what occurred during the 1970s, when RCMP officers burned down barns, stole political party lists and committed a number of offences that led to the inquiry with which you are certainly familiar, the MacDonald Commission of Inquiry in the 1980s.

Nor should we forget that in the 1980s and 1990s, a guy by the name of Boivin was with the CNTU but was working for CSIS at the same time. He had encouraged one of his union colleagues to blow up a hotel in Saguenay—Lac-St-Jean, an area located north of Quebec City. Of course, CSIS did not agree with these acts, but the fact is one can very quickly find oneself in such a situation.

I forgot to mention an important aspect: imagine a country where all these acts can be committed without any judicial review. In that regard, the Ligue des droits et libertés fully agrees with the Canadian Bar Association: judicial authorization is absolutely necessary for the commission of these kinds of acts. The police cannot engage in wiretapping without judicial authorization and without strict prior conditions having been met--in other words, without having demonstrated that other investigative means were attempted and that no other means is available to ensure a successful investigation, etc., before being given a warrant specifying a specific period of applicability. We're talking here about people's private lives, and therefore, the judge issues a warrant.

One may wonder how it works with section 25.1. Could an undercover police officer or a double agent engage in wiretapping to boost his image with certain criminals? Could a police officer commit a series of assaults or thefts, once again in order to boost his undercover image? To what extent will a police officer understand the difference between common assault, assault with bodily injury, and so on? What will happen in cases where common assault becomes assault with bodily injury or aggravated assault?

As lawyers, we are well aware of the fact that common assault can, when an incident occurs, quickly become aggravated assault. In some cases, it may go even further. We also know that there is a principle in criminal law that says you take the victim the way he is.

In these situations, we believe it is extremely dangerous to allow the police to commit offences against the integrity of the person. We also find it very dangerous and worrisome that people would not be advised when their property has not been destroyed. Indeed, someone who has been threatened with forcible confinement but has not been advised by the police will not complain to his lawyer or a judge, because that person does not know that a policeman was responsible.

The police officer who engages in breaking and entering, or kidnaps or forcibly confines someone is not wearing a police badge. This is often done by a police officer in civilian clothes working undercover in a criminal group who wants to establish a reputation in order to collect evidence.

I do not intend to read my entire brief. It is only five pages long, but the CBA has already covered many of our points. However, I do want to address another theme, which is compensation. It is practically impossible for a victim--in other words, someone whose property has been destroyed or who has been physically assaulted by a police officer wearing civilian clothes who committed a criminal offence, to actually sue that police officer. First of all, it often happens that the victim does not know. Furthermore, if the victim does not have the wherewithal to proceed with a lawsuit, it would be illusory to believe that such an individual could go through all the steps required to be compensated.

If Parliament decides to maintain these provisions, an automatic victim compensation mechanism is absolutely essential. If Parliament decides to maintain these provisions, judicial authorization will also be required, as well as an external monitoring mechanism--in other words, a mechanism for impartial judicial review--and political accountability. That could take the form of a committee composed of Members of Parliament that would sit in camera, but there must be a political body with the authority to take a close look at what police officers have done.

I have provided you with a paper by Ms. Shirley Heafey in which she very clearly explains that even the RCMP's existing mechanisms are not effective. They are inadequate given the reality, and especially the current reality. They are even more inadequate for dealing with offences that practically no one knows have been committed by public officers.

I have referred to hearings in camera, and although I readily admit that in camera discussions may be necessary at times, most of the committee's work should be carried out in public, because it is important for members of the public to know what police officers are doing. In fact, over the next ten years, it would be just as dangerous, in terms of the police's image, for people to be unaware of what police officers are doing, as to gradually discover what kinds of offences have been committed, the detailed reasons for their commission and, as my colleague stated, what the results of those actions were.

We have another suggestion to make. If reports are prepared by all provincial solicitors general and by the Solicitor General of Canada, we would suggest that a Canada-wide report be prepared that would include all the provincial reports, because an individual who wants to know who did what has to go and ask the provinces individually. For a number of years now, there have been integrated task forces in place that include municipal, provincial, and federal police officers, as well as members of federal agencies--since we are talking about agencies as well, and not only the police--and foreign agencies such as the FBI, more generally, and certainly the CIA. The Arar Inquiry has provided ample evidence of that up until now.

So, when task forces such as these are acting together, who does what and under whose orders? In these cases, it's important to have a report that provides an overview of the situation as a whole.

I don't have much time left, but the final point I would like to make may surprise you, since it has to do with torture. Indeed, you may be surprised to know that the offence of torture set out in the Criminal Code is similar to the offence of torture found in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Canada signed in 1987. The immunity granted public officers does not exclude the offence of torture. The basic definition of torture is that it is carried out by a public officer or authority. All the police officers I spoke to told me that they cannot engage in torture because they are not authorized to commit bodily harm.

According to our definition, that is an incorrect interpretation of the term “torture”. I'm not talking about Washington's definition, but ours. We believe in that regard that there is no requirement to commit bodily harm. Assault with bodily injury means that there must be injuries which are neither permanent nor inconsequential. Our definition of torture is based on the presence of severe pain.

Indeed, it is possible to suffer severe pain or suffering without actually sustaining any injury whatsoever. The human imagination and the techniques in that regard are quite well developed. We have only to think of those cases involving sensory deprivation, where people are shut away in a room deprived of light, where people lose all sense of time, or where music is used. You have only to think of Guantanamo. All of these techniques were developed specifically to cause suffering without causing injuries. The cartoon image of the police officer with his telephone book comes immediately to mind. But it is basically the same principle. However, the situation today is that technology is far more refined.

In that sense, torture would be possible under section 25.1. The current debate has to do with whether or not that is included in assault with bodily injury. It's an interesting legal debate, but what we must consider is the police officer who may be told that there can be no torture when there are no injuries. In such cases, he might make an individual suffer for the purposes of intimidating him, given that intimidation is allowed. He could supposedly do this without this constituting torture. But that is absolutely untrue. Police officers, who are not legal experts, are being given the wrong message.

In closing, I want to emphasize that these provisions raise two major problems. We can only repeat what we stated in 2001. At the time, the Ligue des droits et libertés was opposed to this legislation. It has had the effect of encouraging a culture of silence among police officers and, in particular, trivializing torture and the violation of fundamental rights globally. Granting this type of immunity to police is of tremendous concern to us. That all citizens, without exception, are equal before the law is a fundamental principle of the rule of law, and one which is the very foundation of a democratic society.

Like the Canadian Bar Association, we are asking that section 25.1 be withdrawn.

3:55 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Barrette.

We'll now go to questions.

Mr. Lee, for a seven-minute round.

3:55 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Thank you, Mr. Chairman.

Thank you to both groups of witnesses.

In order to enforce the law, the police sometimes or even often have to commit an act that might otherwise be an offence. For example, in order to physically detain or arrest somebody, you've got to do what otherwise would amount to an assault. In order to catch somebody who's fleeing, you might have to speed in a car. All kinds of scenarios can develop.

I put this question to the Canadian Bar Association. Doesn't your group recognize that this new section of the Criminal Code is an attempt to codify that murky grey area? It's a good-faith attempt imposed upon us by the courts to try to codify it in some way and record it. Couldn't you simply recognize that this police methodology has to be there? We're simply looking for a way to record what's going on at the behest of the courts.

4 p.m.

Chair, National Criminal Justice Section, Canadian Bar Association

Gregory DelBigio

If that's correct, that certain techniques of this sort have to be there, then it is much, much better that it be codified, rather than having techniques decided upon by police officers on the spur of the moment or on an ad hoc basis. That is certainly so, and this is clearly an attempt to codify it.

The criminal law is filled with recognition of instances in which the police are given permission to use certain investigative techniques in support of certain ends. This, I would suggest, is unlike the use of what would otherwise be assault to effect arrest. These are investigative techniques more akin to the use of a search warrant or a wiretap, and they will likely be deployed in circumstances considered in advance as part of a plan, and they will rarely arise on the spur of the moment.

So if the provisions are not repealed—and I'll get to that in a moment—then there is really no reason that there cannot be prior judicial authorization. We live with prior judicial authorization with respect to all of the investigative techniques that I set out earlier, without interference in the effective enforcement of law. Indeed, it enhances the proper administration of law. So that should occur here.

Now, the question of necessity is always a difficult one. What is necessary for the fair or effective enforcement of law? Fair enforcement of law means that law enforcement will conform with constitutional norms, the society's standards of decency, and the rule of law. Is it necessary, or has it been demonstrated now through the data—which can be assessed—that law enforcement is right now, or has been, falling down in the absence of these provisions?

Well, it's difficult to make that assessment. One way of making that assessment, though, is to ask: three years later, how many charges have there been? How often has this law been used and how many charges have been placed before the courts? Once those are known, you can ask, if there is not a charge in each and every instance in which these provisions have been relied upon, why not? So that goes to considerations of necessity.

4 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

I guess that's why Parliament is debating this now, and why we did it when we first passed it.

My sense is that we haven't had a lot of experience with these sections. We haven't even had a lot of data come in.

I think that's still the case, Mr. Chairman, that the 2005 data report hasn't come in. Is that correct? That is correct. This is 2006.

No, even the 2004 data hasn't come in yet. So I'm not so sure we have a lot of data. But if we did have good data coming in, what additional data do you think we should be looking at to make a good assessment in this review?

4 p.m.

Chair, National Criminal Justice Section, Canadian Bar Association

Gregory DelBigio

Firstly, the statutory language is “annual report.” It should be an absolute requirement that an annual report be tabled by a specified date, or in its absence there should be some good justification for failing to meet that date. Accountability requires at least that—compliance with statutory language of an annual report.

Secondly, I suggested the type of information that might be mandated by statute. As I read the reports, the language in some of them really provides no basis for this group, or any other group, to know what the police did and why they did it. You have to refer back to the statutory language and the balance that is required by the statutory language.

Was this justified in the circumstances, having regard to what the police were doing? It's impossible to know from the language that is being used in the reports. There should be more concrete and more detailed language required. That's at the very least.

4:05 p.m.

Legal Counsel, Ligue des droits et libertés

Denis Barrette

I would simply say, in answer to Mr. Lee's question, that there is also the fact that many offences are not discussed in the report, for a number of reasons stated in the law itself. Either police officers are still conducting the investigation and want to avoid the disclosure of evidence, or they are trying to protect a double agent or informant.

That is all well and good, but who is going to be checking to see whether the investigation is actually still ongoing? Who will be checking to see whether there is a real risk that evidence will be lost? No independent person and no one who is not part of a police organization actually monitors any of these criteria. Police officers are the ones who decide that the investigation is ongoing and that in any case, they still need more information.

This kind of process is extremely risky. One should always be aware of simple data, even if they're incomplete. The way these acts were committed has to be analyzed. People have to be able to question police officers and their superiors and get answers to their questions in order to ascertain what really happened. In that sense, senior police officials should be subject to a judicial test and a committee test.