Your time is up, Mr. Lee.
Mr. Ménard.
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.
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.
4:05 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I have to admit that I'm quite swayed by the testimony of the two groups that we have just heard. I just want to be sure I understand. As regards judicial authorization, the argument made to not consider this kind of control mechanism is the need to keep the data confidential.
It's quite true when you look at the parallel drawn by the CBA to interceptions of private communications, search warrants, production orders, and so forth, that information is not necessarily disclosed as to the stage that has been reached in the investigation. I'm not questioning the fact that some police investigations can be very complex, particularly when the heads of organized crime groups are being targeted. They need to carry out investigations. But like you, I am relatively favourable to the idea of judicial control.
However, what do you think about this idea that some information needs to remain confidential? Do you think that is something that could be problematic?
I will come back to the matter of in camera meetings and the two mechanisms that you have recommended. I don't know whether it was Mr. Barrette or our other witness who raised these points. My advanced age prevents me from seeing your name, but I do know that you are a member of the Bar.
4:05 p.m.
Legal Counsel, Ligue des droits et libertés
Personally, I no longer know when to take my glasses off or when to put them on.
Are you referring here to confidentiality as a means of protection the victims, or rather, for the purposes of protecting informants or double agents?
4:05 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I'm talking about confidentiality for the purposes of protecting the victims of an inquiry, and protecting information about the work that is underway.
4:05 p.m.
Legal Counsel, Ligue des droits et libertés
In my opinion, it's the same issue that arises with a search warrant or a wiretap warrant. Indeed--and this is the actual wording in the Code--no detailed information is to be disclosed regarding the reasons for the search or the wiretapping.
In fact, counsel for the person who is the subject of the search doesn't even know about it until the search has already been carried out. Counsel for such an individual, just as for someone subject to wiretapping, does not know, unless he or she has been advised in another fashion, that his phone is being tapped until 90 days or some time after the wiretapping has already been carried out. The person doesn't know that his phone is being tapped and is unaware of the reasons why it's being done; they may be secret. It goes before a judge and the judge is the one who decides whether or not the wiretapping will be authorized. If the application is dismissed, no one knows why it was dismissed, and no one knows the reasons that were given.
4:10 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
So, as far as you're concerned, the confidentiality argument doesn't hold water.
4:10 p.m.
Legal Counsel, Ligue des droits et libertés
In cases where people suffer damages, for example, or are victims of assault, I believe that both they and members of the public have the right to know. When the police get involved in this kind of activity, it's fairly serious. We're not talking about speeding on the highway, as Mr. Lee was saying. When police officers commit offences that are a direct attack on the integrity of the person, in principle, the public has a right to know. At the same time, some information can remain confidential.
That brings me to the matter of in camera meetings. One certainly understand why, in certain cases, parliamentary committees may need to sit in camera. An independent oversight group could also examine these issues in camera, much like the Security Intelligence Review Committee, for example. I just thought I'd mention that example in passing.
4:10 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Let's hear from your colleague. Then I will have another question for Mr. Barrette.
Would you like to comment on the matter of confidentiality? I find Mr. Barrette's arguments quite convincing.
June 8th, 2006 / 4:10 p.m.
Chair, National Criminal Justice Section, Canadian Bar Association
I would simply add that the provisions in the Criminal Code recognize the need for confidentiality. There are provisions for sealing documents that are used in support of warrants to search, or wiretap authorizations, so those documents remain confidential and under the protection of a court and are unavailable until somebody applies to unseal them. That is typically done after there has been a criminal charge where the rules with respect to disclosure of such information for the purpose of making a full answer in defence become applicable. Typically, if there is no charge it might well be that those will remain forever sealed.
4:10 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I see.
Let's look at command mechanisms. We know that this is in the public domain, even though the number of designated officers is not disclosed, but we are told that it's primarily the Department of Public Safety and Emergency Preparedness, the Department of the Environment, and Fisheries and Oceans that use these provisions. There is a chain of command and certain officials are designated to authorize officers conducting an inquiry to commit certain acts, either for the purposes of an undercover operation or because they're acting as an informant. And there are the constraints that you are well aware of with respect to bodily harm, sexual assault, and murder.
In your testimony, I had the impression that you do not agree with the idea that a police officer is not acting of his own volition, except as regards those provisions relating to emergencies for a 48-hour period. As far as the rest goes, there is a line of authority for authorizing such acts, particularly by senior officials with the RCMP and within the departments. Even here, you feel these mechanisms cannot be reconciled with the imperative of individual freedom that your respected organizations defend and promote.
I'm sorry; it's gotten to the point where I, too, am starting to talk like a lawyer. I don't know what's come over me.
4:10 p.m.
Legal Counsel, Ligue des droits et libertés
You're right; that is dangerous.
4:10 p.m.
Bloc
4:10 p.m.
Legal Counsel, Ligue des droits et libertés
Yes, if we're talking about cigarette smuggling, that's one thing. However, if we're talking about forcible confinement, assault, or hostage taking, we're talking about something quite different, all the more so when threats, intimidation, and possibly even torture are involved.
In 1970, at the time of the events involving the RCMP, there were chains of command. I was saying earlier that when the events surrounding the Arar affair occurred, there was also a chain of command. There always is. There is always a structure in place that should normally act as a safeguard by preventing abuse or the slippery slope. However, there are often innocent victims, there is often abuse, and this is a danger that we know exists. I'm not saying there has been any abuse under the current legislation, but it is clearly a risk for us in the coming years.
4:10 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
You won't hear me giving a wholehearted defence of the RCMP. Although I have never experienced that--I believe I am a few years younger than you--I have a clear recollection of the statement that René Lévesque made in the National Assembly which aborted the trial regarding membership lists seized from the Parti québécois and the barn fire. However, what we're dealing with here is a regime that aims to justify such acts.
In the 1970s, we questioned investigative methods for which there was no justification regime. But now there is one. What would serve people best--in any case, this is probably what the Bloc québécois would do--would be judicial control. As far as I'm concerned, the answer you gave earlier, along with the comments made by the Canadian Bar Association were both convincing and rigourous. We are not questioning the fact that...
I represent a riding where organized crime is rampant. You may recall that in 1995, young Daniel Desrochers was killed as a result of a car bomb attack...
4:15 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Mr. Chairman, I don't want to be too autobiographical here, and rightly so.
As regards judicial control, we understand your arguments. As for creating a parliamentary committee and having it sit in camera, I have yet to be convinced, because that strikes me as a little less operational.
4:15 p.m.
Chair, National Criminal Justice Section, Canadian Bar Association
After your answer, I would like to make an answer with respect to the issue of the chain of command, if I may.
4:15 p.m.
Legal Counsel, Ligue des droits et libertés
I would just like to make a very brief comment with respect to in camera sittings. Although we talked about a parliamentary committee, perhaps we used the wrong term. During the Arar inquiry, I worked with Warren Allmand on developing a policy to provide oversight on matters involving national security. We suggested a committee made up of parliamentarians, which is perfectly feasible, to consider certain matters in camera. However, we would need to ensure that in camera sessions were infrequent.
4:15 p.m.
Chair, National Criminal Justice Section, Canadian Bar Association
I would make a brief answer to the question with respect to the chain of command.
The chain of command does not answer the important issues. A police agency that has vested resources in a particular investigation may be particularly poorly suited to make important decisions with respect to whether or not proper balances have been met. The law now requires that if the police wish to take the impression of a hand from an individual, or install a tracking device on an individual's car, both of which seem relatively innocuous, prior judicial authorization is required for both of those.
The independence of the judiciary enables them to make proper decisions about when to use and when not to use these techniques. If prior judicial authorization is needed before the police can follow a car through electronic surveillance, then presumably it should also be used before it is determined that the police are permitted to commit an assault because the demands of a particular investigation might require it.
4:15 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair, and thank you to the witnesses for being here.
Mr. DelBigio, if I can start with you, in your brief you proposed the judicial oversight as a second or third alternative when the legislation originally came forward. I have heard the arguments for it, and like Mr. Ménard, I am attracted to that as an alternative. If you can play devil's advocate for a moment, what was the argument against allowing the judiciary to play that oversight role?
I'm sorry, I wasn't here at the time, so I'm just wondering if you can help us with that.
My question is also addressed to you, Mr. Barette, if you wish to add something.
4:15 p.m.
Chair, National Criminal Justice Section, Canadian Bar Association
I don't know if I'm in a good position to recall the arguments, or at least I don't recall any convincing arguments to the contrary.
4:15 p.m.
Chair, National Criminal Justice Section, Canadian Bar Association
I don't think so. It is tried and it is a requirement that is used every day in provinces and territories in this country, and it does not interfere with policing. Telewarrants, for example, are one provision where attending before a judicial officer is impractical. And again, I go back to the types of investigations where many of these provisions might be relied upon. It will generally be anticipated in advance, well in advance, because it will typically be—my guess—for major investigations.
Will there be an exigent circumstance? That's the question. Will there be an exigent circumstance ever, such that it is simply not possible to get prior judicial authorization? The law recognizes some instances--for example, what is called hot pursuit, for the police to enter a premise without a warrant--but they're very, very limited circumstances. Might there be such limited circumstances that would apply here? Maybe, but I would suggest it would be rare and they should be carefully spelled out if exigent circumstances are recognized at all.