Justice Committee on June 8th, 2006

[Rob Moore, Conservative, Fundy Royal, NB]

Ms. Barnes, when has anyone ever asked that question?

Every member is an individual member of the committee. Every time a member makes any statement I don't think we have to say: “Is that the position of the Liberal Party? Is that the position of the Bloc? Is that the position of the Conservatives?” That's not helpful.

[The Vice-Chair, Liberal, Derek Lee]

Let's get back to business.

Mr. Thompson left a question for the witnesses.

[Gregory DelBigio]

I'm happy to answer Mr. Thompson's question.

I have not read in the papers or otherwise heard that the people of Canada want the police to be able to use wiretaps, as they see fit, or to kick down doors and enter residences, as they see fit, or to conduct arbitrary detentions of individuals on the street, to frisk them, to have them empty their pockets, to open the trunks of their cars, or to attend with the police at police stations for questioning just because it assists the police.

The people of Canada, I would suggest, recognize that along with good policing, there is constraint--that is, constraint of law and constraint of the Charter of Rights. So while the police want effective policing, the police also want rights that we recognize and cherish in Canada to be maintained and upheld.

[Myron Thompson, Conservative, Wild Rose, AB]

I agree they do, I'm not denying that, but there are changes of events that happen during operations of investigation. You don't know in the next second what's going to be confronting you; you may have to get into that trunk, you may have to do this.

Let them be the judge. I trust their common sense to know when and when not to. I really am reluctant to change any legislation that they are comfortable working under and operating, which apparently hasn't caused a great number of problems. I don't think we have the reports, as Mr. Lee said, but I haven't heard of great problems in regard to that, so I'm....

I think I'm hearing that you'd like to see the section gone.

[Gregory DelBigio]

That's correct.

[Myron Thompson, Conservative, Wild Rose, AB]

I disagree fully, and I think the police disagree with you. I just think...to each their own, I guess.

[Gregory DelBigio]

Sometimes the police might be required to act on the spur of the moment, but not always. I would urge you to accept, particularly when the police are acting in anticipation, with forethought, that then they go for prior judicial authorization.

[Myron Thompson, Conservative, Wild Rose, AB]

When they do it on the spur of the moment--

[The Vice-Chair, Liberal, Derek Lee]

That's time.

Monsieur Ménard, for five minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

First of all, I want to say that I don't trust anyone unconditionally: either elected officials, the police, judges, or lawyers, even though it's not a flaw to have a legal background. I studied law myself, so I know that. However, we do need to be concerned about the effectiveness of police investigations, particularly when they target organized crime. At the same time, there are freedoms that we must cherish, and nothing can justify abuse.

I have two questions. Some witnesses have told us that if these provisions were to remain in place, even though you are in favour of their repeal, they should apply only to investigations dealing with organized crime. It's primarily the RCMP that appeared before the Committee with respect to the work of law enforcement organizations. It informed us that these provisions have been used in two types of situations: investigations relating to organized crime, narcotics and drugs-related investigations, and immigration-related cases.

Do you share the view that these provisions should only be used where investigations relate to organized crime? That my first question.

And I'll move directly to my second question. In your view, what are the major, generic offences that would be authorized under the existing provisions, in light of what it says in subsection 25.1(11)? For the last little while, we've been talking about assault being authorized, but subparagraph 25.1(11)(a) states the following:

(a) the intentional or criminally negligent causing of death or bodily harm [...]

Yet bodily harm and assault are two different things. Those are my two questions.

[Myron Thompson, Conservative, Wild Rose, AB]

A point of order, Mr. Chair. It's not a big deal with me, but I do believe that the rules of this committee are that everyone will have an opportunity once before somebody has an opportunity twice. Is that correct?

[The Vice-Chair, Liberal, Derek Lee]

Actually, yes. If it's not actually written down, that would be the intent of the chair.

[Myron Thompson, Conservative, Wild Rose, AB]

Mr. Petit has been on the list for quite a while and he hasn't had an opportunity, and this is the second time for Mr. Ménard. Go ahead and do what you want, but I'm offering a reminder.

[Réal Ménard, Bloc, Hochelaga, QC]

On the same point of order, we really have to resolve this issue. Without wanting to deprive Mr. Petit of the opportunity to ask his question, I would point out that the Bloc Québécois is entitled to ask two questions. We cannot be relegated to the status of the NDP. Whoever asks them, we are entitled to two questions. I would have been quite happy to listen to what Mr. Petit has to say, as he is a true source of inspiration for me at all times, but at the same time, I don't want the rules to be ignored.

[The Vice-Chair, Liberal, Derek Lee]

Everybody will get a chance here.

Mr. Petit, if you would like to jump in here, we'd be delighted to hear you.

Do you want to finish off, or do you want Mr. Petit?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Petit, is that all right? Thank you, Mr. Petit.

In that case, could you please answer my two questions?

[Denis Barrette]

As for allowed offences, I want to say right from the start that any and all offences against the integrity of the person should not be authorized.

[Réal Ménard, Bloc, Hochelaga, QC]

That's not what you would like, but that's the way it is under the legislation. For some time now, you've been talking about assault.

[Denis Barrette]

Yes. Assault is not exempted in the paragraph you read out earlier, because it refers to assault with bodily harm, something that a police officer cannot be authorized to do. However, he can be authorized to commit assault. Common assault can be authorized. But, as I say, assault causing injuries that are not just temporary injuries or are detrimental to a person's health, may not be authorized.

[Réal Ménard, Bloc, Hochelaga, QC]

The term “assault” means pushing somebody, for example. That is the term that's used when there are no injuries.

[Denis Barrette]

That term is used if there is no temporary injury which is detrimental to a person's health. Here we're talking about assault with bodily injury. Assault with bodily injury is more than just an ordinary injury; it's an injury that is prejudicial to one's health and is not of a temporary nature. For example, it could be a scar or a large bruise. As you say, it could involve pushing someone, or making him fall, but without actually hurting him. If the person is not hurt, there is no bodily harm. Often, it's a matter of coincidence whether a person has injuries or not.

We can certainly discuss the differences here, but as far as the police are concerned--and I want to make it perfectly clear that I am not criticizing them--it's different. When the police arrest someone for assault, it doesn't matter whether it's common assault, assault with bodily injury or aggravated assault. The important thing is to stop the assault. For the investigator, that may be more important, but as far as the police officer is concerned, that difference is not so important. His responsibility is to prevent someone from hitting someone else, for example.

As regards authorized offences, I would limit them to offences with a judicial warrant that are clearly framed. The police asked that section 25.1 be added following the Campbell ruling by the Supreme Court, which said that the controlled sale of narcotics is illegal and constitutes a crime, even if it is carried out by police officers. The police reacted by requesting general immunity, when Parliament had already passed specific provisions relating to the controlled sale of narcotics. In fact, those provisions still exist.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I do hope our research staff can prepare a little table. I would really like to have a better understanding of the difference between bodily harm, assault and common assault, because it is important. I'm very grateful to you. I sense in you a calling as a teacher that has found expression here. I would like to have a table, Mr. Chairman, before we complete our work.

[Denis Barrette]

I should say that the case law also provides nuanced definitions of the various offences. So, we do have definitions in the case law. In this context, there is no clarity, and that is the danger.

[The Vice-Chair, Liberal, Derek Lee]

Our research staff will get right to that, Monsieur Ménard .

Mr. Thompson, you're 100% correct about the lineup for questioning.

Monsieur Petit, you're next.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I will address my first question to the Canadian Bar Association, then to Mr. Barrette, and finally to the person seated next to him, whose name I'm unaware of.

To begin with, I would like to draw your attention to the fact that in Quebec, we're afflicted with the scourge known as “drinking-and-driving”. When a traffic accident occurs where there are people injured or where criminal negligence is involved, for example, a police officer arriving on the scene of the accident must obtain authorization before taking blood samples. So, right there, authorization is required.

If they state they're unable to obtain a warrant, well, there are two types of searches--one that results in a trial, and another which is authorized by a justice of the peace. In this latter case, since there is no follow-up, there is no envelope containing the relevant documents or anything of that nature. However, if someone goes to the Court House in Quebec City, for example, and he has any reason to believe that [Inaudible--Editor], he has the right to try and get it. If he does not do so, then he cannot claim that he was unable to obtain one.

Now let's talk about search warrants. Personally, I have a BlackBerry, but have you seen what police officers have? They all have computers. They can easily apply for a search warrant--in about 30 seconds, if they have reasonable grounds to believe that something is going on. In that case, they receive an electric warrant. In this way, they are able to obtain a lot of authorizations.

Your arguments for amending sections 25.1 to 25.4 are nevertheless quite solid. However, I would like to point out that every indictable offence is different. So, the judge has to take an individual, as opposed to a collective, approach. As this gentleman mentioned, nobody knows about sections 25.1 to 25.4. In Quebec, when somebody wants to prove that a police officer made a mistake, he will tend to rely mainly on the Quebec Police Officers' Code of Ethics. Rarely is reference made to sections 25.1 to 25.4 of the Criminal Code, which are a little harder to work with.

You say that it makes no sense to have them, that they cause a lot of problems and can lead to abuse. But can you tell me just how the police are supposed to mount an undercover operation against a group like the one in Mr. Ménard's riding? A young boy was killed there in a bomb attack carried out by a gang of thugs.

Imagine that it was discovered at some point that an informer at the Auto Insurance Board of Quebec was providing information to the Hell's Angels. Under the circumstances, how could the police obtain a warrant? They couldn't do anything. In certain situations, you feel as though you may have to bypass the system. Mr. Barrette, you probably won't agree with me, but what do you think should be done in a situation where you can't even get a warrant?

In the case of police officer Marc Saint-Germain who killed four of his colleagues in Trois-Rivières, the officer that arrived on the scene needed a warrant. He had to apply for a telewarrant, but it worked. We are seeing that in some cases, this kind of system is a success. We shouldn't be totally negative.

In any case, you're putting me in a delicate position; you're talking about torture, whereas in 33 years of practice, I have never handled that kind of case. You have provided us with a definition of torture. However, if I use the word “torture” in the current context, I could say that Parliament, as an agent of the State, is forcing the Bloc Québécois to sit in this forum. By forcing the Bloc to vote for Canadian laws, it is inflicting severe pain.