Justice Committee on June 13th, 2006

[The Chair, Conservative, Art Hanger]

Well, exactly.

[Jeanine LeRoy]

There would be an argument with respect to whether that hair sample was properly obtained.

You probably don't want to hear my argument about that now.

[The Chair, Conservative, Art Hanger]

I know what the answer is in this particular case. In this particular case--and you're absolutely right--this matter was brought before the court of the land, and on the matter, the judge ruled that in fact it was an assault--

[Jeanine LeRoy]

It was.

[The Chair, Conservative, Art Hanger]

--but it was of such a minor nature compared to the gravity of the crime and the crime spree that these people were involved in that he allowed the evidence to stand, which did in fact result in their conviction.

So now, with this legislation, this action really applies to a similar case under this legislation. What existed before this legislation is now in the law, and it allowed police officers to take some very violent criminals off the street. In fact, they were very organized. So here we are.

[Jeanine LeRoy]

If I were the police officer, I would just have a chat with this fellow I had just arrested on this warrant, convince him to give me all the information I would need to infiltrate the group, and commit the robberies right along with them, because the legislation lets me do that. You don't need to assault this guy. You can go and commit the robberies with this fellow.

[The Chair, Conservative, Art Hanger]

I don't think that's the nature of our police departments or the training they're involved in, to necessarily go and do all those things.

[Jeanine LeRoy]

But that's what they do. They're infiltrating--

[The Chair, Conservative, Art Hanger]

Yes, they are.

[Jeanine LeRoy]

--criminal organizations.

[The Chair, Conservative, Art Hanger]

And some of them take years to really infiltrate--

[Jeanine LeRoy]

Absolutely.

[The Chair, Conservative, Art Hanger]

--and obtain.... That's why you see charges reported the way they are, in very vague terms, over periods of time. Doing so allows them to continue on with their investigations without any fear of somebody reading that and saying, “Oh, I know what that's related to”.

[Jeanine LeRoy]

But if there's an ongoing investigation, as you've heard from other witnesses before you, those matters can be addressed by sealing specific reporting items. We do that by way of warrants now.

[The Chair, Conservative, Art Hanger]

I would beg to differ with you about sealing. As a major crimes investigator, I don't know how many warrants I have had from which the seals were lifted and all the evidence was put forward. Doing so jeopardized not only the undercover operators but also the investigations over time.

[Jeanine LeRoy]

But that unsealing is done after a notice of application is brought before a judge, and a judge makes that ruling.

[The Chair, Conservative, Art Hanger]

It's not always the best.

[Jeanine LeRoy]

There's no question judges don't always get it right.

[The Chair, Conservative, Art Hanger]

Anyway, I just wanted your comment, and I've got it.

Now we are on to Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I'd just like to ask Ms. LeRoy about a couple of things. You suggested that we need a report further down the road because it's hardly been used, so we don't know the effect. I agree with the need for a new report.

And you suggest we don't really need this law because it's never used. But how would you know, because they don't have to report except in certain exceptional circumstances? There is no way for us to know how many times it's been used.

[Jeanine LeRoy]

And certainly we agree with you that the reporting requirements are deficient. Our main point here is that you don't have enough information to make the decisions that are being asked of you at this time. You need more time. You need more information, and you need to do whatever it takes to get that information.

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

I just want to make a point, and then I have another question. It is that it's been mentioned a couple of times that this allows people to break the law, but with this legislation in place, no one is breaking the law.

I have five or six areas in which I think there might be improvements. I'm against judicial review, and I'm against public reporting because--without getting into a long debate here, which I will do later when you're not here--I think it jeopardizes the safety of police officers.

But I do have six suggestions, four of which are pretty simple. One I had before coming into this meeting. One suggestion is more periodic review. One suggestion is an annual report that has a time limit--you have to get it in by a certain time. One suggestion is a consolidated report so we don't have to get all the police forces and fisheries officers in the country to put them all together and chase them all over the place. And the fourth suggestion is a limited period for designation, like what the RCMP have chosen to do for themselves. So those are four simple administrative ones.

The two others are more difficult. As I said, I don't like public reporting because it lets the underworld and terrorists know what we're doing, but what about in camera reporting to some organization like an all-party committee of Parliament, which might be better than nothing?

This is the last one. You know there are three laws you can't break, and I'm wondering what you think about adding a fourth one, which would be torture. I suppose you could use an international definition for it, because you'd have to have a definition.

Any of the witnesses are welcome to comment on any of the changes I have proposed.

[Ken Swan]

It's hard to imagine torture that doesn't involve bodily harm--although it's apparently possible.

[Larry Bagnell, Liberal, Yukon, YT]

I brought that up before, because there's mental torture, sleep deprivation, things that people don't define as bodily harm.

[Ken Swan]

Without attempting to give a legal opinion in international law, I would have thought that any Canadian legislation that authorized torture would be contrary to the United Nations covenant and therefore, in international law at least, illegal. It probably would be declared unlawful by our own courts as well, for the same reason.

Might I suggest that you add to your list of administrative responses the one we've set out for you here, which is an independent audit of police forces, in other words, a proactive audit, not merely receiving information and considering it--a body that does the kind of audit that SIRC does for CSIS right now. It's one of the best examples we have of that kind of auditing body, a body that can ask questions, that can visit, that can look at documents.

If, to whatever extent, there is a body like that available and in place, then the concealment of some kinds of information becomes more tolerable because you know there's an auditing process going on by people whose job it is to ensure that the legislation is being followed.

So if you'd add audit to your list, we'd be very happy.