Justice Committee on June 8th, 2006

[Tamra Thomson]

The mission of the CBA is indeed multifaceted. It does have that member interest facet to it that gives the wonderful insurance rates you talk about from the CBIA. It also has a public interest element to it that is well established in the mission statement adopted by Parliament.

It has the elements of improvement of the law in the administration of justice, equality in the justice system, and promoting the rule of law. All of these general principles, to which many of the statements the CBA makes before parliamentary committees relate, fit into that public interest mandate of the association.

[Rob Moore, Conservative, Fundy Royal, NB]

I think a precaution I would bring is that when there are positions that are diametrically opposed to many of what your card-carrying, paid-up members hold, I would think it could be problematic. If I wanted to join an advocacy group, I would do that. I might take out a membership in some advocacy group that's pushing one world view or another. I view a professional association differently. I'll just leave it at that.

To the witnesses, specifically on the use of agents rather than police officers, what about in a small town where you have a police force of ten people and everyone knows them? If we do keep these provisions, how could they do some of this work when everyone in that town knows those police officers? They may want to do some work that would involve this section.

[Gregory DelBigio]

The police are remarkably good at what they do, and that includes police officers acting in an undercover capacity. Sometimes there might be obstacles that they will have to carefully consider. The question really is, if there are obstacles they have to carefully consider, does that justify the alternative?

You give the example of the small town. Does that justify the alternative of the police enlisting the services of the thug, the thief, the drug addict, the drug trafficker from the small town, and asking that individual to commit an assault on behalf of the police because the police are not able to do it, but that's what they believe their investigation warrants? In plain language, that can't be right

[Denis Barrette]

I just want to add that unlike police officers, drug traffickers and pushers, along with pimps, as referred to by the person sitting next to me at the table, are not subject to a code of ethics. That is an important distinction to make. Indeed, it is increasingly the case that under current law, policing responsibilities are conferred upon agencies or officers that are not subject to the same code of ethics. In such cases, this could almost be considered contracting out. Indeed, these responsibilities could even be entrusted to a federal public officer, for example, who is not subject to a code of ethics. Of course, he is not a pimp, but he has neither the experience nor the same code of ethics as a police officer. We believe that is another issue we will soon be facing.

Finally, as for your comment about small towns, I believe the provincial police have teams of undercover officers that generally move around. When there is a need to infiltrate a specific group, that can be done effectively.

[Rob Moore, Conservative, Fundy Royal, NB]

Parliament, in its wisdom, put this in place. I know the police are tasked with protecting society. I mean, it's not a perfect system, but the job we've given them is to protect us, and they're going to do that. We have these different situations that have been contemplated, for example, when someone is in hot pursuit and there's a need for an instant reaction and you can't go to a judge and get clearance. You have to have been given a mandate to go and do what you've done in the first place. I'm wondering how we would protect society and how we are going to enable our police to do that in an open way.

I think we want these things in the open. The statement was made that we don't want a culture of silence. My fear is that if we take away these provisions in the code that we've provided for, rather than preventing a culture of silence, as I feel it does, we would be promoting a culture of silence because things may be done that aren't in compliance with the law. When they're acting under these provisions, these individuals are not in reality breaking the law; they're acting under the law. If the provisions weren't in place, and if they did take these steps, they truly would be breaking the law. I think that would lead to a culture of silence.

I want to get your comments on that.

[Gregory DelBigio]

I go to one of my earlier remarks in saying that the rule of law has to be concerned both with the existence of the law as well as the content of the law. You need to ask, is it good law to include agents within this? Is it good law to allow assaults or perhaps extortions to occur?

Part of openness is public trust. Public trust will be found through prior judicial authorization. Public trust, if these provisions continue to exist, will be found in transparent and comprehensive accountability mechanisms, the types of mechanisms that don't now exist.

[Denis Barrette]

By way of reply, I would like to refer to the interception of private communications. This is referred to in sections 181 and following of the Criminal Code. It is surprising to see that a whole section of the Criminal Code deals exclusively with interceptions of private communications. That is a good indication of how important they are.

At the beginning of this part, it states that listening illegally to private communications is a crime and an invasion of privacy. It then strikes a balance by referring to the conditions under which wiretapping can, in some cases, be permitted. It talks here about a warrant to which certain conditions are attached and the need to report to a judge.

The fact that, under the Criminal Code, a judge is the one to issue a search warrant is an example of a specific rule which ultimately reassures police officers. They feel reassured at the idea of remaining within these rules when they take initiatives. Otherwise, our society's appreciation for the law could be diminished. Abuses would then be entirely possible.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore and Mr. Barrette.

I might add, as a former police officer and major crimes investigator, I had occasion many times to use everything that we talk about here, from wiretaps, to warrant applications, to various forms of interception, and even what this legislation permits right now. At that time there was no legislation that permitted it, but we needed the use of agents frequently, always tightly controlled by the police.

I can't recall in my time how this legislation, which would permit police officers to do the same thing as they did before and the controls.... There were always elements of problems with controls, and that's not going to change, whether you have legislation or not, when it comes to agents or the use of agents. But to repeal this and not allow the police to utilize these investigative tools actually does harm to society because so many investigations require a complete toolbox full of such things as we talk about here.

To have to run to a judge every time a decision is made in an investigation to comply with what you're suggesting would hamper an investigation. I would suggest that even in this last on-the-record initiative that is now taking place with the arrests of several alleged terrorists in this country, such rules and such applications of the law were applied.

And here, if you want to talk about protection of evidence and people.... And I can name other situations where organized criminal activity takes place where the life of even an informant hangs in the balance and where the release of any of this information to the public would be absolutely detrimental, whether it's now, at the time, or even years in the future after the case is all over with.

So I fail to see how the repeal, as you have suggested right at the onset, might be beneficial to our society.

[Gregory DelBigio]

Allow me to address that in two parts.

First, it is well known and it is the public experience that courts are sometimes asked to consider whether a search warrant or wiretap--it is a search warrant, much more commonly--has been properly obtained, and for the courts to conclude that it has not been and then to set it aside. That is an indication that even with prior judicial authorization, there are problems, in some instances, with the understanding of the law on the part of police officers who apply for these. Prior judicial authorization is important because it will stop some of these processes in advance. Right now there is no such way of stopping them. It is a public officer who is tasked with determining whether or not it's proper to go forward.

Second, I will respond to the comment about the tools that are necessary for the trade.

It's true that police require certain tools in order for them to do their jobs effectively, but it is absolutely incorrect, I say with respect, to suggest that each and every conceivable tool imaginable would comply with Canadian society--with our law, our standards of decency, and our constitutional standards.

I'll ask this rhetorically. These provisions permit the use of assault as part of an investigative technique. Is it really the case that we want police or their agents to commit assault, because it somehow is thought that it will advance an investigation?

And think about investigation. Some cases are investigative in the sense that they are simply intelligence-gathering, and they never go before the courts. These provisions would permit the commission of an assault as part of intelligence-gathering.

I suggest to you that not every tool should go into the toolbox.

[The Chair, Conservative, Art Hanger]

I would have to suggest that when a police officer is acting in the line of duty, fulfilling his commitment to the people he serves, sometimes those things occur--I think Mr. Lee even alluded to that--in an arrest, or in a matter leading up to an arrest.

Be that as it may, Ms. Barnes is next.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Obviously there's a divergence of philosophy around the table. Anyway, I welcome all of you here today. I think your considered opinions are valued highly in this room and I hope our researchers are compiling all the lists of suggestions, so that when we sit down together to do our report, we'll have that in a very easy-to-understand format. I'm sure that with their competence, they're doing it on an ongoing basis.

It's true that this committee can do a review of anything it wants at any point in time without having a legislative enactment for its review, but the reality of the situation is that usually there are many pieces of not only government legislation coming at justice, but also private members' bills, and this committee gets busy very quickly--so I'm most enamoured of the idea of an ongoing review of this. I feel quite strongly that at this point in time we have insufficient material before us to properly evaluate. We would have a recommendation, but the reality is that the government would have to put an enactment, a change in their legislation, to mandate that review on an ongoing basis of, say, every three years.

I'd like to know from this side of the table, from our witnesses, whether you're in agreement with that concept of an ongoing three-year review, first off the bat. While you're responding to that, since you said you didn't get to all the material in your five-page document, if there's anything you want to put on the record, I'm prepared to give you the time to do so.

[Denis Barrette]

If the legislation is renewed, a periodic review would be necessary in the shortest timeframe possible. I fully agree with you there. Indeed, today's exercise is not a societal debate. In fact, most Canadians are not even aware of this statutory justification. In our opinion, there has not been really substantive public debate on this, except within certain organizations and among legal experts. Debate has been extremely limited, because people are unaware of the situation.

In that sense, there should indeed be periodic debate, if these provisions are retained, as well as ongoing review of the legislation. I would even go so far as to suggest that public consultations be held, as there have been with respect to identity cards, for example. I took part in public consultations on that very matter. When this project came forward under Mr. Coderre, at the time he was minister, he was deemed to be an important issue. In our opinion, allowing people to commit offences as part of an investigation is also an important issue that relates to the rule of law. So, I would go that far.

I fully agree with you that there needs to be ongoing, but more in-depth review of this legislation than what the tools we currently have available to us would allow.

[Sue Barnes, Liberal, London West, ON]

Do you need time, Mr. Lee?

[The Chair, Conservative, Art Hanger]

Just to inform the committee, Mr. Lee will take the chair here very shortly, and we'll conclude this session.

The time is now five o'clock. I would ask the committee—these witnesses have been sitting here for an hour and a half—do you want to continue your line of questioning?

Yes, for a few more minutes?

Mr. Ménard has a question, Mr. Petit has a question, and Mr. Thompson will be next, but Ms. Barnes, you still have some time.

I'm sorry for the interruption.

[Sue Barnes, Liberal, London West, ON]

It's no problem.

It's interesting that the enforcement officers have set up their internal protocol in response to their not having one. None of you has really talked about the protocols inside. You've talked about judicial oversight as an alternative, but does either of you have any comments on prior testimony about protocols that are in existence? If you have not read the committee Hansard from the earlier meetings, that's fine too. Just let me know.

[Gregory DelBigio]

I don't have enough familiarity to make a detailed comment, but I would reiterate that protocols are of course important, having regard to the present scheme. It is of course the case that we hope and expect police officers will use care in reliance upon these provisions, but a well-crafted protocol does not adequately substitute for prior judicial authorization.

[Sue Barnes, Liberal, London West, ON]

Mr. Barrette, please.

[Denis Barrette]

I am not aware of the details of the police protocol. However, I imagine that such protocols are, indeed, in effect. I just want to sound a cautionary note with respect to protocols. Such protocols are indeed necessary.

I represented an intervenor in the Arar inquiry. The matter of protocols was extremely important in the context of that inquiry. At the time, there were information-sharing protocols in place with foreign countries, including the United States, of course. I should say, however, that under political pressure in the post-911 period and the context of integrated teams and operational forces that many different police organizations were involved in, including the FBI and possibly police forces from other countries, protocols were easily ignored.

It is important to remember another point with respect to protocols, and it relates to what police officers know about human rights. It's great to have protocols laying out all sorts of fine principles with respect to human rights, but although an officer may know something about human rights--since it can happen that officers are more aware of these issues--the involvement of a person outside the police is often beneficial. In other words, having a judge there to witness the action, as is the case with search and wiretapping warrants, is a way of more easily guiding police action and ensuring it respects rights and freedoms, laws and fundamental rights in this country.

Protocols may well talk about fundamental rights, but it's possible police officers will not fully understand the meaning of the word “torture”, for example. Even if we tell them it is prohibited under section 269.1 of the Criminal Code and that there does not have to be bodily injury or assault for torture to have been carried out, in actual fact, I'm not certain that there won't be torture.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Barrette and Ms. Barnes.

Mr. Thompson, five minutes.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you. It's been an interesting afternoon.

Mr. Ménard related a while ago that he's talking lawyer talk and it might be difficult to understand. Well, I'm not a lawyer, and I believe you may have a hard time understanding a lot of lawyer talk.

I listened to the conversation a minute ago between you people and the chairman, Mr. Hanger, who's a police officer, and that attracted my attention more than anything. Because here we have a person who's in the profession, and we have people out there in the profession. We've had witnesses here who are in the profession of protecting people through the police force. They seem to be quite happy with the legislation the way it is; in fact, they don't want it broadened, but they want it left there so they're enabled to do a better job.

Mr. Hanger said you need lots of tools in your toolbox if you're a police officer. You're suggesting a lot of tools shouldn't be allowed in there. We get to tossing around things like that, and then I recall a comment made, I think it was by Mr. Lee, a while back, that we don't expect to have a whole bookful of codes: you can't do this, but you can do that, and you can't go here and you can't go there. When does that all end?

I believe that I represent the average Canadian on the street as well as anybody. I've been a farmer, I've been a teacher, a principal in a school. I've been involved in a lot of different things, and I'll tell you that 95% of the people out there want the police to get their job done, and that is, to protect society. They do not want any hindrance. I think most of them would agree with me in saying we trust our police with good common sense to do those things that will protect those rights that need to be protected when so needed, but the bottom line is we're going to do a better job of protecting society.

I'm sick and tired of seeing 11-year-old girls taken off a skateboard when they're going to a movie or to buy a video, and then later raped, and there could be a problem of some technicality--maybe not particularly in that case. I'm just saying that we are sick and tired of hearing comments such as when you arrest an alleged terrorist and somewhere in the background on TV somebody says something to the effect that, well, there's a possibility there could be some entrapment. What?

The police did an excellent job. They've done something that's really opened the eyes of Canadians. I'm cheering them on. The old 95% average guy, I'm saying “Good on you”. Wait a minute, did they do something wrong? Did the police do something wrong? Well, frankly, I don't give a hoot, and neither do most Canadians. They don't really care. They want the job done. And within the ranks of those people who are professionals who do the job, the authorities above them, they will take care of their own. They know the difference between good common sense, good law protection, and abuse. They know the difference. They'll look after it.

Why do we need to come up with something in the Criminal Code to say this is right and that's right, and this is wrong and that's wrong, and you people better listen to us because we know better? Well, I don't know better than the police force.

I would really like you to comment on what I had to say.

[Sue Barnes, Liberal, London West, ON]

A point of information, Mr. Chair. Is this the position of Mr. Thompson's government, also, or is he speaking for himself?

[The Vice-Chair, Liberal, Derek Lee]

Mr. Thompson has left the witnesses with a question.

[Myron Thompson, Conservative, Wild Rose, AB]

I always speak for myself. Don't ever be confused about that.

[Rob Moore, Conservative, Fundy Royal, NB]

A point of order, Mr. Chair.

[The Vice-Chair, Liberal, Derek Lee]

Yes, Mr. Moore, a point of order.