Justice Committee on June 13th, 2006

[Alexi Wood]

I certainly understand the concern about safety, and I do want to preface my comments with that. Our recommendation regarding the geographic location is...we would consider provincial designation sufficient. The reason we would want the province in which this took place is that if you read the legislation, it's the provincial ministers who designate the peace officers who are going to be doing this. If the public needs to know who to hold accountable, they'd have to go back to that provincial minister, and if we don't know in which province it took place, then we have no way of knowing which minister to hold accountable. The same goes for the RCMP, whether it is acting in its municipal police force role or in its national police capability.

So the province in which it occurred is essential when it comes to figuring out who will be held accountable for what activity. While I understand the safety issue, it may be that a provincial designation could jeopardize an investigation, which is why we've recommended the ability to go to a judge for an override if any type of information like that was to be kept back.

I think if it's just as broad as provincial.... I'm not a law enforcement expert, but if that were to jeopardize something, then they would be able to apply to a court, which would have access to the information and be able to make a decision, whether or not even the designation of which province it occurred in was problematic.

[Sue Barnes, Liberal, London West, ON]

If every province or every jurisdiction had to do their annual report, and then somebody took the overriding Canada-wide data and put it in without the geographic...we could get a cross-Canada report without the data from individual crimes. You wouldn't put the jurisdiction in. So some of the concerns about safety...it's like a non-identifier, but you'd still get a total picture of what occurs in Canada. For somebody who wanted to know the jurisdiction, they would have to go through a different process. Are you following what I'm trying to say?

[Ken Swan]

There are provisions now in the legislation that permit the delay of inclusion in a report until a time when that would not compromise an ongoing investigation, compromise the identity of an undercover officer, or endanger someone's life or safety. Those all seem to be quite reasonable reasons to delay, although we have proposed that there should be some independent scrutiny on whether those factors do exist. So simply delaying the provision of the information to the wider public would probably continue to protect the interests you're concerned about. There seems to be no reason that the information should not be collected and analyzed.

If it's being delayed, once again I would raise our favourite solution to these problems: an audit body that could look at the information before it was public and scrutinize it. Then to whatever extent it was being delayed, the audit body would give us some comfort that nevertheless it was being looked at carefully by someone with the responsibility to do so.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

A point of order, Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

In Ms. Freeman's questioning, I got the impression that she believed I was saying that the police should have full realm to do what they want. I hope that wasn't what she meant. I agree that we have the laws, and I want to let the police control what they do internally, within the laws. And this section is law. They're allowed to do it, and I think they're the best judges of how it could be handled. I hope I didn't mislead anybody over there, thinking that I was just saying give the police full realm. I wasn't saying that at all. I hope you got that.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

I thought that's what you were saying.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson, for the point of clarification.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Mr. Chair.

I also want to thank the witnesses for being here today. I found it interesting and informative to hear your perspective.

I tried not to put words in your mouth, but I did make some notes here. What I think was said was there may be an increase in the use of this legislation occurring. I think Ms. LeRoy mentioned that, and that the reporting requirements are inadequate. Ms. Wood said that we don't know what's really happening. Also, Ms. LeRoy said that we don't know if it works, and you want to have a two- or three-year review.

So there is a concern expressed. Yet there's a lack of tangible evidence to base those concerns on. You have a concern and you're expressing it. That's legitimate. But one of the questions I'd like answered is, what are your concerns based on? As this legislation was being developed, were you in opposition to that? I think yes. Again, what are your concerns based on? If you were opposed before, you remain opposed and don't support the legislation. But in some examples, I think Mr. Swan said he may. I want to clarify that.

I'm starting from a premise that I trust the courts. The judges are human, so all decisions could be critiqued. But the premise I start from is a trust in the courts of Canada. We live in an incredible country, and I believe we have to trust our courts.

We need to start from a premise that we trust our police officers. I won't take it as far as trusting politicians, but that would be a wonderful goal to aim for.

[Some hon. members]

Oh, oh!

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Perhaps he can't trust himself!

[Mark Warawa, Conservative, Langley, BC]

I think the goals are good—to hold us all to a standard—and I applaud your efforts in that respect.

On May 30 we had the RCMP make a presentation. I'd like to take about a minute and half to read their example, the Project CHARNY:

...an organized crime group was believed to be involved in making and selling Canadian counterfeit currency. The investigative unit in Montreal acquired the services of a civilian agent and made application to utilize the agent, accompanied by a designated member, to attempt to purchase counterfeit currency from the crime group.

.........................

A senior official granted the authorization to permit the agent and designated member to purchase the counterfeit currency. The designated member, who was also an undercover operator, and the agent purchased a large quantity of Canadian counterfeit currency shortly thereafter.

During the course of this investigation the senior officials granted a total of four authorizations. In this same case the criminal operations officer for the division authorized the designated member on five other occasions to purchase items offered for sale by the crime group. Of these five authorizations, two were not acted upon.

These authorizations permitted designated members to purchase and possess counterfeit currency, false passports, false social insurance cards, and false driver's licences from members of this criminal organization.

The RCMP purchased, as evidence, approximately $250,000 of counterfeit currency, false passports, false social insurance cards, and false driver's licences from subjects in Montreal and Toronto. Searches conducted at residential addresses resulted in the seizure of equipment used to falsify documents, enabling investigators to lay criminal charges against those responsible for the operation.

As this scenario has illustrated, by utilizing the law enforcement justification in circumstances such as this, investigators are better able to identify and attempt to infiltrate the organized crime groups involved in the actual production of the counterfeit currency and counterfeit identification cards, thereby dismantling the criminal organization.

My question will be for Mr. Swan. I think you said you support the use of this legislation in this instance. Where do you draw the line on where we could use legislation like this and where we could not? And on what tangible evidence are your concerns based?

[Ken Swan]

We've taken the position from the outset that there are a number of laws that need not apply to police officers in the performance of their duty. Among those are laws relating to the possession of contraband materials and laws relating to transactions involving contraband materials.

All of the authorizations and conduct in the example you gave, which I have in front of me too, fall clearly into the kinds of justification we were quite prepared from the beginning to grant to police officers. We think there are probably a number of other areas where specific targeted provisions of the Criminal Code need not apply to police officers in the course of their duty—properly authorized, perhaps, with appropriate safeguards, perhaps. There's no reason, for example, to keep police officers from purchasing counterfeit money, just as there's no reason to keep police officers from purchasing drugs when they do so to enforce the law.

[Mark Warawa, Conservative, Langley, BC]

Would they be breaking the law without this legislation?

[Ken Swan]

They would be breaking the law without this legislation, but there's no need for this legislation for them to be able to do it. Much more targeted, much more modest, much more carefully controlled legislation that we could have supported five years ago would have permitted, so far as I can see—except for vagaries such as conspiracy to commit an indictable offence, whatever that means.... Everything else I could see in the RCMP's report consists of things we would have no difficulty permitting police, properly controlled and properly audited, to engage in.

What this legislation does is much broader. It says police officers can break any number of laws, except ones that result in certain kinds of harm, when they think it's reasonable and proportionate to do so. We just don't think that kind of legislation is appropriate. It creates a class of people who have the right to decide in advance when it's reasonable and proportional to break the law, and have justification for it. That's what we think is wrong with this legislation.

[Mark Warawa, Conservative, Langley, BC]

So the line is where?

[Ken Swan]

The line should be drawn carefully through the Criminal Code, section by section. It should not be a blanket authorization in advance to break any law subject to a relatively low test of when it's appropriate to break that law.

[Alexi Wood]

For example, following the Campbell and Shirose decision, the Controlled Drugs and Substances Act was amended, and there are regulations pursuant to that act that allow police to break certain provisions of the Controlled Drugs and Substances Act. That's a narrowly tailored, limited use of police legitimate law-breaking. What the CCLA has objected to, and what we continue to object to, is this broad-sweeping principle, this broad-sweeping law that allows almost unfettered discretion, without government ever having to come forward and say, this is why we need the law; this is why we need to be able to do this.

As we said in our beginning comments, we start from the basic principle that we all need to obey the law. If we're going to create a class of people who are exempt from that, we need to have some basis on which to know that we actually need to do that. Here we just have this broad-sweeping brush of ability to get around certain laws. It's very different in the Controlled Drugs and Substances Act regulations. I think when we say we're opposed to this legislation, that's what we mean. We mean we're opposed to this carte blanche, as opposed specifically to the narrowly tailored regulations that follow from the Controlled Drugs and Substances Act.

[Mark Warawa, Conservative, Langley, BC]

Is there time for the others to add their comments? No?

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Warawa.

That brings our afternoon questioning to an end.

I really would like to thank the witnesses for appearing and presenting to the committee their views of these particular sections. Now we will be deliberating in reference to finalizing the review by way of a report. That's what we will be discussing now in the latter part of this afternoon.

At this point in time, I would like to suspend for one minute until the witnesses have an opportunity to leave. Perhaps any other members of the public would leave also. We will be entering an in camera session. Thank you.

[Proceedings continue in camera]