Justice Committee on June 13th, 2006

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order. This is our continued review of sections 25.1 to 25.4 of the Criminal Code, protection of persons administering and enforcing the law.

We have with us as witnesses today, from the Canadian Civil Liberties Association, Mr. Ken Swan and Ms. Alexi Nicole Wood, who is the director. I understand you will be making a presentation. We also have, from the Canadian Council of Criminal Defence Lawyers, Ms. Jeanine LeRoy. I understand you'll also be making a presentation.

We will begin.

Ms. Wood, would you like to start?

[Alexi Wood, Director, Program Safety Project, Canadian Civil Liberties Association]

Thank you, sir.

Mr. Chair, members of the committee, thank you for this opportunity to appear before you today.

My name is Alexi Wood. I am the director of the public safety project with the Canadian Civil Liberties Association. I am joined today by Ken Swan, a board member with our organization, and Brooke Wagner, an intern.

Five years ago, the Canadian Civil Liberties Association appeared before this committee. In our remarks at the time, we expressed concern about the breadth of the powers being given to law enforcement. We are here again today to reiterate many of those concerns.

For months now, the CCLA has been waiting for the committee to undertake this review, and we are pleased to have this opportunity today. We hope the committee will take the comments from the CCLA and others and use them to make recommendations for amendments to the legislation.

In a democratic society there is a fundamental principle that all people, regardless of their position, must obey the law. If this basic principle is going to be violated, it should require the most compelling of circumstances and must be closely scrutinized. Unfortunately, the law enforcement justification provisions of Bill C-24 do not adequately provide for either of those safeguards.

In addition, if government is going to violate this basic principle, then it is government that must demonstrate the need for such extraordinary powers. This has not been done. Several years ago, following Campbell and Shirose, law enforcement complained that the impact of that decision was to hobble certain police investigations. However, subsequent legislation effectively addressed this concern, and police acquired the power to break certain provisions of the Controlled Drugs and Substances Act even before Bill C-24 was introduced.

The CCLA did not then, nor has it ever, objected to legislation that allows for limited power to break the law within certain carefully controlled circumstances. If there are other situations in which such powers are required, the burden is on government to come forward, identify the circumstances involved, and propose a limited law-breaking power to address them. Unfortunately, Bill C-24 creates a general law-breaking power that can be used in an infinite number of circumstances. We have viewed and continue to view this law as unwarrantedly dangerous, and we urge the repeal of this law as it is currently formulated.

In the alternative, the CCLA has several recommendations it wishes to make that could at least make Bill C-24 less bad.

The legislation allows designated public officers to determine what illegal acts they are going to undertake, as long as they believe the act or omission is reasonable and proportional in the circumstances. There are two problems with this provision.

First, there is nothing in this provision to require that the illegal act must be necessary for the protection of an overriding interest. Allowing law enforcement officers to ignore the very laws they are sworn to protect must always be seen as an extraordinary act. The CCLA therefore recommends that the legislation be amended to require that all contemplated acts of illegality be necessary, not just reasonable and proportional.

Second, the decision about usage of these extraordinary powers should not be left to the officers themselves. Officers contemplating breaking the law in the line of duty should be required to obtain prior authorization from their superiors. In the event that such authorization cannot be obtained prior to the act, officers should be required to notify their superiors as soon as possible. Currently, the proposed legislation does not provide for such internal reporting in all circumstances.

In fact, reporting, both internal and external, is only legislatively required in two limited circumstances: one, when public officers direct someone else to commit an otherwise illegal act; two, when the act or omission would likely result in serious damage to property. There is also a requirement to report a temporary delegation of the authority to commit an illegal activity.

The CCLA recommends that external reporting should be expanded to include all illegal activity undertaken by law enforcement. If law enforcement officers are going to conduct illegal activity, the activity must be closely scrutinized by public officials and by members of the public.

I would like to take a minute here to discuss the reports that are submitted.

We have canvassed the reports from provincial police as well as the RCMP and have found them insufficient. They often provide such limited information as to essentially be meaningless.

The reports do not indicate where the act took place. While we recognize that the exact location may be sensitive information, we believe that the reports should contain at least the province, because that would be essential in order to seek a possible redress. In addition, the public ought to know if the RCMP was acting as a municipal police force or was acting in its national capacities.

In one specific example, an RCMP report stated that, and I quote, “...acts or omissions...relating to the possession of stolen goods, theft over $5,000 and conspiracy to commit an indictable offence...”. That description is too vague to give the public the remotest idea of what happened.

In our opinion, the report should provide sufficient detail so as to satisfy the public that the acts are permissible under the legislation and provide enough information so as to know who to hold accountable. Where law enforcement agencies believe they ought to keep such information from the public, the law should specify the criteria that would justify such withholding, and the officer should have to apply to court for an order.

In addition, the legislation allows law enforcement agencies to delay even limited reporting now required. We recognize there may be certain circumstances where external reporting may jeopardize an ongoing investigation or put an undercover operative at risk. In such circumstances, delay in reporting may be acceptable; however, if there is going to be a delay in the reporting, it should not be left to law enforcement to make that decision. Again, if the annual report does not provide the requisite disclosure of all illegal acts, the agency at issue must apply to a court for such authorization.

The provisions cover a wide range of illegal activity, and we are mindful of the necessity for police to be able to conduct covert operations, and they may need to infiltrate criminal elements. There are some illegal acts, however, that, in the opinion of the CCLA, should never be permitted to occur.

The current legislation expressly prohibits the infliction of bodily harm, but arguably allows threats of physical violence. We recommend that the legislation be amended to explicitly prohibit such threats, as well as any act of violence, whether or not it results in bodily harm. The CCLA also recommends that law enforcement should never be allowed to instigate illegalities. In addition, compensation should be required in every case where police law-breaking has caused injury, whether personal or property, to innocent individuals. Finally, no police force should be allowed to engage in this type of conduct unless the governing legislation provides for an independent audit. An agency, independent of law enforcement and government, should have ongoing access to law enforcement records, facilities, and personnel, so it can conduct investigations and ultimately report publicly on the way these powers are being exercised. This agency could operate in much the same way that SIRC currently does in regard to CSIS.

Again, I would like to thank the honourable chair and the members of this committee for the opportunity to appear before you today, and we welcome any questions.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Wood.

Ms. LeRoy.

[Jeanine LeRoy, Representative, Criminal Law Chambers, Canadian Council of Criminal Defence Lawyers]

Thank you.

On behalf of the Canadian Council of Criminal Defence Lawyers, I too would like to thank the committee for giving us an opportunity to express our views at this review of the law enforcement justification provisions of the Criminal Code.

My presentation will be very brief, but I do welcome your questions.

As I'm sure you know, the Canadian Council of Criminal Defence Lawyers is a national association of defence lawyers formed in 1992. The chair of the council, William Trudell, appeared before both the House and Senate committees in 2001 to speak to this legislation as it was then proposed prior to its enactment. At that time he urged the committees to proceed with caution, and he expressed the concerns of the council related to this legislation.

Specifically, he expressed a concern about the potential for the abuse of police powers. He expressed a concern about police conduct that is justified under the legislation--and my friend has already made mention, for example, of uttering threats to cause harm or indeed death. He expressed a concern about the vagueness of language in the legislation, for example, the phrase “sexual integrity”. And he expressed a concern, as my friend has also raised, with respect to accountability and the reporting requirements as they exist.

Mr. Trudell indicated at that time that he wanted to look back in five or ten years and be able to assure his clients--yes, your constituents--that the legislation struck the appropriate balance. Now here we are five years later, and this committee is undertaking such a review to answer the question, has the legislation struck the appropriate balance?

It is the position of the CCCDL that given the relatively small number of times the legislation has actually been used, given the absence of resort to the emergency or exigent circumstances provisions, given the absence of judicial consideration of the legislation, given the absence of charter challenge to the legislation, and given the absence of complaints about the use of the legislation, it is really too early to tell if this legislation strikes the appropriate balance. It appears to us that the limited use that has been made of this legislation has been primarily confined to investigations of criminal organizations, and, within that context, usually to obtain false identification papers, counterfeit money, tobacco, and alcohol. However, given recent arrests of persons alleged to have committed terrorist offences, the council is aware that there may be an increase in the use of this legislation in that arena. This increase in the use of legislation may well afford this committee more, and perhaps then sufficient, information to answer the question of whether this legislation has struck the appropriate balance.

Therefore, and perhaps surprisingly to some of you, the CCCDL strongly urges this committee to conduct a further review in two to three years' time to see how all of this plays out. Perhaps at that point in time, Mr. Trudell will be able, as he hoped at his previous appearance here, to assure his clients that this legislation has struck the appropriate balance, or at the very least assure his clients that this committee is continuing to monitor the situation, is willing to hear from us and others, and is willing to address any subsequently revealed need for change. It's just too early to tell.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. LeRoy.

We're now about to enter the question period.

Mr. Lee, you have seven minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Gentlemen and gentle women, I shall lead off.

Thank you to both groups for your submissions. For the first time in these hearings, I actually enjoyed both the briefs. I thought both briefs were heading in the right direction.

I'm going to deal with an issue that has come up at the committee, which is the absence of data on which we could base a decision about whether the provisions were working well or working badly. We've had some in camera information, which has been helpful to supplement, but are either of your groups aware of any significant or material failures or even good news involving the use of the sections from the perspective that you both offer?

I'll start with the Civil Liberties Association.

[Alexi Wood]

We're actually not aware of anything, and I think that is a problem. When you look at the legislation and see the broad universe of possible illegal activity that can be committed under this legislation, there are only three very narrow times where reporting is required. So we don't know. There could be a large number of times that the legislation is being used and illegal activity is being committed, but there might not be. It's such a grey area in the rest of the universe of possible illegal activity. As I said, reporting is only required in those three very narrow circumstances.

The absence of complaints and the absence of problems being brought forward is actually of concern to our organization. We're operating in the dark. We don't know all the times when this type of illegal activity is being undertaken. That's why one of the recommendations we made is that the reporting be expanded to include all of the activity, within reason, that's being undertaken under the legislation.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

And the criminal defence lawyers?

[Jeanine LeRoy]

The short answer is no, we're not aware of any glaring problems. We agree that the reporting requirements are inadequate.

One of the other ways in which this type of information would be fleshed out, for example, is if charges resulted from some of the investigations that utilize this legislation. That would have to be disclosed. There just hasn't been any judicial consideration of the issue. From that, we assume that where there have been charges laid as a result of the investigations using this legislation, there haven't been any issues with the manner in which that investigation was undertaken.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Have either of you addressed the possibilities of increased judicialization of this procedure through an amendment of some sort?

I personally shy away from increased judicialization until I see a real need for it. Right now, we don't have enough data to make a decision either way. Have you addressed the pros and cons of judicializing some element of the procedure that isn't judicialized now? Because none of it is now. Have you given any thought to that, or do you have any views on that?

[Ken Swan, Representative, Canadian Civil Liberties Association]

We haven't proposed judicializing any of the mechanisms for authorization. What we have done is to suggest that some of the delays and some of the non-reporting of provisions should be subject to judicial review at the time those decisions are taken. For example, we've asked for judicial review of a decision not to report a particular breach of the law for one of the reasons set out in the section itself.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

[Jeanine LeRoy]

You are aware that Mr. Peter Copeland testified on behalf of the Criminal Lawyers' Association before this committee. He argued that a form of judicial review by way of prior authorization, or certainly subsequent review, would be appropriate. I'm actually a director of that organization as well, but I am here today speaking on behalf of the CCCDL, and we are not yet taking a position that this is required at this time.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

If I have time, Mr. Chairman, Mr. Ignatieff has a question.

[The Chair, Conservative, Art Hanger]

Go ahead, Mr. Ignatieff.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

I want to thank both organizations for their presence and commend them for their longstanding work in defending the civil liberties of their fellow citizens.

I did have one question. The issue I'm raising is whether the exemption from criminal liability that these sections offer should be restricted to public officers or whether it should be extended to “other persons”, which appears to designate agents of the police, commonly people with criminal records who continue to live a criminal life. It has been recommended that the phrase “other persons” be deleted and that the exemption from criminal liability should be confined simply to public officers.

I'm wondering whether both of these organizations could offer a view on that issue.

[Ken Swan]

We haven't taken any position on that subject this time, although we did look at it the last time the legislation was in this committee and at the consultations prior to that. Our view then was that those persons ought to be subject to the ordinary law and to whatever prosecutorial discretion can be exercised on their behalf and whatever arrangements can be made to accommodate the fact that they were acting, apparently or otherwise, with official blessing, or at least without official condemnation.

At this point, we have simply left that part alone, on the basis that having lost the argument before, it didn't seem worth bringing it up again.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

But if you could bring the argument up again, what position would you take?

[Ken Swan]

We don't think anybody should be permitted in advance to break the law.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

Including public officers.

[Ken Swan]

Including public officers. No one should be given the kind of general authorization to break the law that this legislation shows. That was our primary position in 2001; it's our primary position in our brief today.

Having said that, if Parliament insists on doing this, then we have proposed a number of ways in which that authority might be limited.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

But are you telling me that it would not be a meaningful improvement in the law to exclude or delete the phrase “other persons?”

[Ken Swan]

Oh, yes.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

It would.

[Ken Swan]

Yes.