Evidence of meeting #9 for Justice and Human Rights in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
Liberal
Michael Ignatieff Liberal Etobicoke—Lakeshore, ON
But in your judgment, it would be only a marginal improvement, since you don't like the whole thing to begin with.
Representative, Canadian Civil Liberties Association
It wouldn't go all the way to getting us back to where we were, but it would certainly be an improvement. It would certainly remove from the group of privileged people a group who are the most notoriously uncontrollable and presumably those who are acting in circumstances that are not quite the same as sworn constables upholding the law.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chair.
You are the first witnesses to suggest adding something. I understand you wish to add the word “necessary” to subsection 25.1(8). Instead of the term “reasonable and proportional”, you would prefer to have something more legally restrictive. I find the concept interesting and I would like you to tell us more about it.
Am I correct to think it's subsection 25.1(8) you want amended? Perhaps you don't have the relevant provisions of the Criminal Code with you. If this is the case, our researchers will help us with this. I believe this is where you wish to make this addition.
Director, Program Safety Project, Canadian Civil Liberties Association
I beg your indulgence to allow me to answer in English.
Director, Program Safety Project, Canadian Civil Liberties Association
Yes, you are absolutely correct. That is the provision to which that amendment would apply.
We are suggesting that instead of the phrase “is reasonable and proportional in the circumstances”, which is found in paragraph 25.1(8)(c), it would be “necessary”.
As I said in my opening remarks, there are two recommendations. One is that public officers themselves are the ones able to make this determination, and legally that's problematic. But then also is this bar of “reasonable and proportional” problematic. In our view, that's too low, and it should be raised to be “necessary”. If an officer can sort of go through a balancing and think, well, it might not be necessary, but it's reasonable, that's too low a bar. It must be necessary. As we've said, this is such an extraordinary power we are giving to law enforcement that we need to restrict it as much as possible.
Bloc
Réal Ménard Bloc Hochelaga, QC
I do understand what you say. All agencies responsible for civil rights and liberties told us the same thing. I believe it's a reasonable position. However, what would “necessary” mean? In 2000, for example, there were 37 illegal motorcycle gangs in Canada. Infiltration and use of informers is inevitable in police investigations. You can have the greatest respect for human rights, but you still have to acknowledge that major police investigations cannot succeed without covert operations and the use of informers. Even the Supreme Court recognized that law enforcement agencies don't have to reveal their sources.
How will you define the term “necessary”? Up until now, we don't know of any abuse. Quite the contrary, the RCMP has put in place internal control mechanisms. In the federal government, three departments used these provisions in cases relating to drugs, immigration and organized crime. I find it interesting that you wish to add the term “necessary” but can you give us some details on how it would be interpreted?
Representative, Canadian Civil Liberties Association
I think the word “necessary” appears throughout the Criminal Code as a test for all kinds of different activities. I haven't been able to grab one right away from the other justification sections of the Criminal Code, but it is a concept that I know appears in many sections, and perhaps before we're done I'll find a couple of examples for you.
I note that if the word is inserted in the provision where we're proposing to insert it, or where it's come up in this conversation that it might be inserted, it would nevertheless be subject to the qualifiers that the public officer or peace officer would have to reasonably believe it was necessary.
Representative, Canadian Civil Liberties Association
In other words, there would not be a separate objective requirement that it be necessary, but that person reasonably believed it was. It simply puts a stronger bar, a higher bar, for the police officer to consider when about to break the law.
Bloc
Réal Ménard Bloc Hochelaga, QC
I think this proposal is interesting. We should analyze it further, but I really have a capital of sympathy -- I'm talking like a Marxist but I am not -- for this proposal. I want to reassure our Chair in this regard.
You mentioned the threat of physical violence. You said that certain actions should obviously not be allowed. There are three exceptions: physical integrity, sexual assaults and murders and homicides. You want the threat of physical violence to be added to the list of prohibited actions for which no justification is admissible. In an infiltration scenario, what would this addition mean?
Director, Program Safety Project, Canadian Civil Liberties Association
We have discussed these issues around lunch. So I am ready to answer.
Bloc
Réal Ménard Bloc Hochelaga, QC
I know I'm getting old and awfully predictable. You are not the first to say this.
I'm listening.
Representative, Canadian Civil Liberties Association
Our friend has commented that there are a number of infelicities in the language in this subsection 25.1(11), and I think that's right. One of the problems is that one has to negligently cause death or bodily harm to another person to have offended against that subsection, to have gone outside the provisions of the legislation. As we see it, that could mean you could have every intention of killing somebody, but fail at it and therefore be protected by the law, whereas if you succeed, you would not be protected by the law.
My friend has already commented on the vagueness of the language, “violate the sexual integrity of an individual”, although I think that may well come from one of the Supreme Court of Canada decisions, that concept of violation of sexual integrity. I'm not quite sure, but it certainly leaves a great deal of vagueness to understand exactly what is meant.
We would have preferred, five years ago, that the specific sections we would authorize police officers and public officers to break be set out in some detail. There's no difficulty whatsoever with exempting police officers from criminal liability for offences of possession of contraband or trafficking in contraband. The problem always comes when you start dealing with offences against the person, and subsection (11), I must say, is only there because of what came out of the consultation process before the legislation was first drafted.
We would like to have it a lot stronger, and we think that dealing with the other kinds of offences, attempts, conspiracies, counselling, at the same time would be a good idea. We don't think the police officer should be going around counselling the infliction of bodily harm.
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair, and thank you to the witnesses for being here.
Ms. LeRoy, if I could start with you, the point you made about whether there are incidents that we're not aware of, in the sense that if there were no charges laid it would not have come to the attention of defence counsel, the accused, or shown up in any reports.... And, Ms. Wood, you may want to answer this as well. If we needed to change the wording for the reporting function, how would we word it so that even though charges weren't laid, they still had to report it and report it publicly?
Representative, Criminal Law Chambers, Canadian Council of Criminal Defence Lawyers
I think you just wrote it.
Representative, Criminal Law Chambers, Canadian Council of Criminal Defence Lawyers
It's that simple. I think it's important to say somewhere in the legislation that it has to be reported whether or not charges are laid. It's that simple.
We would go further to echo the concerns of my friend, that indeed more information is required of the actual reporting itself. She is right. It shows you nothing of value.
As an aside, I would say that when I was reviewing the previous testimony you've already heard, I was very concerned to learn of the lateness of the reporting, the delay in the reporting. That has to be addressed.
Director, Program Safety Project, Canadian Civil Liberties Association
I'm happy to. As we stated in our opening comments, we recommend that the reporting be expanded to cover all uses of this legislation, not only the three limited circumstances it currently provides. As my friend commented, the delay...I read the legislation and there is nothing in this legislation that could prohibit law enforcement from essentially delaying indefinitely. There is no limit on that, and there's no oversight of it either.
Our recommendation is that if law enforcement is going to delay, there needs to be a judicial authorization for that delay. And third, as my friend also commented, the detail in the reports is essentially meaningless. We need sufficient detail so that members of the public can hold the relevant ministers accountable for the action that's happening.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Along a different line, I'm taking the opposite position from Mr. Lee. I'm inclined to feel that having prior judicial approval would be better. The difficulty I'm having with that is the exceptional case, the urgent case, the emergency case. I'm looking for some suggestions for the wording, so that in every case, unless you're faced with these circumstances, you get prior judicial approval. That would be the basic structure. What would be the exceptions that would allow the police official to not get that prior approval? Could we use the same kind of wording that is used when you don't have to get a warrant because of reasonable apprehension of a crime about to be committed?
I looked at that wording. It didn't seem to be quite good enough for this specific type of activity we're talking about here. I don't know if you've given thought to that. If you have, I would appreciate your comments.
Representative, Criminal Law Chambers, Canadian Council of Criminal Defence Lawyers
It's difficult to respond, because, as you know, that portion of the legislation has never been resorted to. We can't look to the police and ask when they needed to use it; they didn't need to use it. It's difficult.
I would tend to disagree that it would be difficult to craft the correct wording, because, you're right, we do it now, mostly through case law. But by way of an example, if evidence is going to be destroyed now, the police officers don't have to get the search warrant...or at least they run the risk of being told later they needed to. Or it's for the safety of the police officer. They can search that vehicle in certain circumstances if they believe the safety of the police officer is in danger.
So I'm not sure it's impossible to craft, but I'm also not sure it's necessary that they have that power, because they've never had to use it.
Representative, Canadian Civil Liberties Association
The language in paragraph 25.1(9)(b) is probably not bad, as such language goes. It sets out three exceptions, where an act or omission is necessary to:
(i) preserve the life or safety of any person,
(ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or
(iii) prevent the imminent loss or destruction of evidence of an indictable offence.
Those would all seem to be reasonable reasons to proceed without prior authorization, providing that what is done is within what the act permits to be done.
