Justice Committee on June 8th, 2006

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

Monsieur Barrette.

[Denis Barrette]

First of all, the Ligue des droits et libertés is very reluctant to support the idea of a judicial warrant for anything involving crimes against the person. We are quite concerned about the notion that a judge could authorize assault, forcible confinement, hostage taking, and other such acts.

However, we have less trouble with the idea of a judicial warrant--and this is only a possible scenario--in order to be able to pinch somebody who was plotting to sell ammonium nitrate. I could also cite property offences or any other crime, whether it's gambling, fraud, etc., which are not crimes against the person.

So, as we stated in our brief, we would like these offences against the person to be removed. This is a societal choice that we're asking you to make. Does the integrity of the person come before the tools police officers need to have?

Indeed, assault could prove to be a very useful tool for police, as could torture. That sounds cynical, but I'm being perfectly objective: in some cases, torture could be a tool. I doubt that, however, because torture always leads to lies about the people we want to arrest. Just because there are tools available that can make the job easier doesn't mean they are acceptable. As far as we're concerned, anything that attacks the integrity of the person is unacceptable. Privacy is another matter. In some cases, such as wiretapping, if it is done properly and if the officer is required to report on it subsequently, that could in fact be acceptable.

As my colleague said, we are slowly but surely providing parameters for police officers and their agents to commit certain acts. In a way, we're providing them with a corridor within which they can act.

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

There's no practical consideration here in terms of the number of applications that would be made to the judiciary, in the sense of swamping the labour of our judges, given the few that are being reported.

[Gregory DelBigio]

There are many judges in many provinces. I do not understand that they are presently unable to attend to search warrants and wiretap authorizations. I am certain that they would be able to attend to applications of this sort.

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

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

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Brown, from the Conservative Party.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chair.

Thank you, Mr. DelBigio, for being here today.

I want to ask you a question. In terms of your methods in coming up with the position that you brought forward today, what attempts have you undertaken to survey the membership? The number that you state of 36,000 members is certainly a significant amount. What attempts have there been to survey the membership of the Canadian Bar Association or even more particularly those involved in criminal justice?

[Gregory DelBigio]

Ms. Thomson will answer this question; it's a procedural question.

[Tamra Thomson]

Yes.

All statements by the CBA, first of all, are based upon principles that have been adopted by our council, which is like the parliament of the CBA, if you will. Resolutions may be brought forward to the council and voted upon by the representative body, which has members based roughly in proportion to our membership in each province, and it meets twice a year. The basic principles of criminal justice on which all of our statements on the Criminal Code are based have been adopted by that council.

Secondly, when we have a particular bill or, in this case, a review of a law that has been in place, it goes before our criminal justice section, the members of which have been elected to their positions in the executive by members of their provinces and territorial groups, as well as the chairs of each of the sections within each province and territory. There's a second representative process in place within the section. The statement is then reviewed by a standing committee of the CBA and finally approved by the executive officers. There are third and fourth levels of review and procedure by elected members.

Parliament doesn't survey all Canadians each time it passes a law. It uses representative systems, as does the CBA.

[Patrick Brown, Conservative, Barrie, ON]

Similarly, when there are discussions in Parliament based upon the election that follows, when the members were elected to the CBA board, was this one of the things that was discussed in that election, in terms of the review of section 25? Was that something the persons who were reviewing this would have been involved in? Would they have been advertising or expressing their positions on this to the membership?

[Tamra Thomson]

The principles on which the position is based are published and known, and the review of section 25.1 would not have been an election issue because it wasn't in a review at the time of the last elections.

[Gregory DelBigio]

But it's also important to be clear that the criminal justice section is made up of both people who practise criminal defence work and prosecutors. It is at that starting point that the position goes forward, and has gone forward with agreement.

[Patrick Brown, Conservative, Barrie, ON]

That dovetails into my second question, if there's still time, Mr. Chair.

You made mention that there's no process for complaints so you aren't able to give us a barometer of whether any members have complained about the use of the section. In terms of your conversations at conferences or congresses, have there been any complaints made to you as a person in a leadership position in the CBA? Have there been any comments in any of the continuing legal education sessions that occur with CBA in terms of concerns people have with this section?

[Gregory DelBigio]

Once again, one of the difficulties is that there is simply an absence of data. I can tell you that I'm aware of some cases in British Columbia--which have not yet been before the courts, but will be before the courts--in which this provision was utilized by the police.

It's before the courts, so no further comment is appropriate, but that might be the first full airing of at least a single instance in which this provision has been used, and it presumably will be informative in the sense of informing the public and members of the legal profession about how these provisions were interpreted and applied in one particular investigation.

[Patrick Brown, Conservative, Barrie, ON]

But as of yet there have not been any complaints?

[Gregory DelBigio]

Nobody has complained to me, but at the same time I am here today on behalf of the CBA voicing these concerns.

[Patrick Brown, Conservative, Barrie, ON]

I appreciate that. As a member of the CBA, I'm certainly curious about how that proposition was formulated.

Mr. Barrette, how many members do you have in your organization? Like the Canadian Bar Association, are you able to get your members' input on various issues?

[Denis Barrette]

First of all, Mr. Brown, I want to say that what distinguishes us from the Canadian Bar Association is that the Ligue des droits et libertés does not represent a single group within the community. The Ligue des droits et libertés is a policy- and action-oriented organization whose members have a variety of backgrounds. Unlike the Canadian Bar Association, which is made up of people working in the legal profession, the Ligue des droits et libertés includes legal scholars, social workers, non-legal practitioners, workers, unemployed, and so on.

Historically, lawyers have been members of our organization, but our membership is not made up solely of lawyers. Mr. Jacques Hébert was one of the founding members, as were Mr. Bernard Landry and others. I don't believe either Mr. Landry or Mr. Hébert are lawyers.

The positions taken by the Ligue des droits et libertés reflect the outcome of discussions that have taken place at the board and committee level. In this case, it was the Civil Liberties Oversight Committee. Our positions are adopted by the committee and then by the board of directors. It's as simple as that. Positions are developed following discussion.

One thing is quite striking. Like the Canadian Bar Association, our position is the same as it was in December 2001, I believe, when the legislation received royal assent. We even organized a press conference at the time to publicly announce our opposition and draw attention to what we saw as the dangers associated with these provisions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

Mr. Bagnall is next, for five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you very much.

Thank you for coming. It's great to have your experience and views.

I'm going to tell you the first part where you haven't convinced me, and then the part where I'd like to do some further study.

I'm not so convinced by what was said before, and just repeating the same arguments. As Mr. Thompson said at one of our meetings, if it's not broke, don't fix it. We haven't really had any evidence from any witnesses that I can remember that there are problems. But we did discuss at an earlier meeting--one of you brought it up--having another review after this one, because there is not that much evidence in it. I'm quite sympathetic toward having that in another three or five years, or whatever.

I think there is possible jeopardy at the beginning and at the end process for infringement on civil rights. At the moment I'm not convinced that we should do it at the first of the project, as I mentioned in other meetings, because organized crime can be so insidiously infiltrated and I wouldn't like to have any more options for them to actually find out what's happening.

I have the same problem with reporting at the end of the process. Good intelligence just helps them prepare, but we don't know how many people are designated. Most of the events aren't eligible to go in the report, so we don't know a lot.

I was intrigued, Mr. Barrette, by your idea of having an in camera session of parliamentarians. The other thing I liked was the idea of having a consolidated report, because we have to go to all the agencies in the country--I think we had this problem in one of our earlier meetings--all levels of government, and all the police forces to find all the reports. That's a little work.

So if we were to make a little progress and have an in camera committee of parliamentarians to look at all of those things that are not actually in the reports now--the number of designated officers, the actual identification of every event--to see how it's working, would you find that at least a small step forward?

[Denis Barrette]

Yes, except that in camera meetings should be restricted to matters relating to the protection of informants and the conduct of investigations following review of the situation by MPs and experts. In other words, they should be the exception, rather than the rule. Having a small committee of politicians conducting ongoing overview of the way in which these sections are enforced could indeed be useful.

Politicians may have some reservations about holding in camera meetings, and I understand that, since I have some of the same reservations. On the other hand, in the circumstances, one should be able to expect, not necessarily control, but some political responsibility or accountability. That's how I feel.

Of course, I am using the word “control” in the sense of monitoring or oversight, as opposed to decision-making. It goes without saying that politicians cannot decide the reasons for the investigation. That is not their role. On the other hand, they can act as watchdogs to a certain extent.

[Larry Bagnell, Liberal, Yukon, YT]

One thing you said in your remarks was that this could lead to an increase in torture. In that torture is one of the few things they have to report--personal injury--I can't imagine any force in Canada using it, because it has to be in the report. So how could the provisions of this law increase the use of torture?

[Denis Barrette]

First of all, I invite you to read the definition of “torture”. It can be found in section 269.1. The exact same definition can be found in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Just to summarize, it refers to severe pain or suffering intentionally inflicted on a person for the purposes of intimidation, with a view to obtaining a statement or something else from him.

Another characteristic of torture is that it is carried out by a public official or someone acting on behalf of the State. If you read the clause of the Canadian Human Rights Declaration that deals with torture, you will see that nowhere is there any mention of assault or bodily harm. I also am of the view that bodily harm is not necessary if the aim is to inflict severe pain or suffering on an individual. That is partly the difference between the Canadian and American definition of “torture”. I believe that in the American definitions, it does refer to bodily harm and consequences. That is the focus there.

What you say is interesting. In the absence of any real study of what torture is or a decision to use the international definition, as opposed to the American definition, things rapidly become confused. That can easily be the case for a police officer or public official, who is not even a police officer, entrusted with this task. I believe the distinction may not be clear.

An individual could thus commit torture while believing himself to be protected. And, in actual fact, it is not only possible, but even probable, that he would be. That would be a strong argument to make before a judge.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Barrette.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and I thank the witnesses for their testimony.

I want to pick up a bit on what my colleague Mr. Brown said. I think I've had this discussion in the past with Ms. Thomson on some other committees.

Mr. Barrette, you made the distinction between the CBA and your group. Your group is maybe an action group, or so on. You're promoting a certain view, and that's understandable. But I've struggled with this in the past, and I see the CBA as a professional representative organization of which I'm a member.

I've sat on a number of committees of justice where we've received from the CBA statements that are more value ones. I was on the committee studying the child protection legislation, the committee studying the definition of marriage, and now this committee, and the CBA has taken positions that are very much what I would call in some cases personal opinions, value judgments, or so on. They have made statements like:

Any suggestion that this exemption better enables police officers to investigate criminal offences is an unsatisfactory basis to justify such a radical departure from the rule of law.

We had that statement from the CBA. I'm a member of the CBA and I don't agree with that.

I don't want to get bogged down in this, but I'd like to know what your mission statement is. You're the professional organization I belong to. We have group insurance and that type of thing. We promote the interests of the legal profession by weighing in on decisions that would impact lawyers specifically. But some of these things seem to be more like value judgments. I want to get your opinion on this.