Justice Committee on Dec. 13th, 2007

[Insp Michel Aubin]

That stage is rather difficult to explain, because it goes case by case. Allow me to say that traditionally when we've investigated, we've had to step in at the stage where the final product was being produced. If it's a 17-step process, we would find out how we could step in at stage 17.

There has been case law that has allowed us, once the production is well engaged.... The courts have come to the opinion that there are no two ways about it, that it may not be at the final stage but that it is well engaged, and has accepted that this was the intention.

These products can be used for many things other than methamphetamines or other drugs, and a combination of these products could be used for many things. We have to be careful, under present legislation, not to engage too quickly. That's our reality.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore and Mr. Aubin.

Mr. Lee.

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

Thank you.

In order to address the possible inference that the current law does not provide any enforcement capability at all for equipment that might be used, I want to refer the panel to and ask for your reaction to the existence in the Criminal Code of the conspiracy provisions, section 465, and the attempt provisions: attempt to possess, attempt to traffic, conspiracy to posses, conspiracy to traffic.

With all the offences, it could take place before the actual creation of the meth, and that's what this statute tries to do. But even with this statute, there's an assumption that we're going to have to have an amendment to it, because the current wording, in my view, wouldn't get by one half-hour in the first court prosecution that took place under it. It's simply so deficient legally that it won't fly. This dog won't hunt, so to speak.

If we amend it, then it might be viable. But even under the amended provisions, you have to have knowledge and you have to have intention. To be more practical, it's not just the existence theoretically of the knowledge and intention. There has to be police evidence, evidence of the intention. The police aren't going to arrest just anybody, whether it be under this statute or under the conspiracy statute or under the attempt provisions, unless they have good evidence of intention.

I'm suggesting to you that there is plenty of law available, if the police have evidence of intention or evidence of conspiracy, to pre-empt a conspiracy to produce methamphetamine or any other drug. Those provisions exist under the existing Criminal Code and the existing CDSA.

I'll follow that with another question. If you can't find all the functioning crystal meth labs that exist now, how are you going to find one that hasn't even come into existence yet?

I'll put it to the RCMP to respond on the conspiracy and attempt provisions and how they could be used now, if we had the evidence and had the money to invest in the investigation.

[The Chair, Conservative, Art Hanger]

Mr. Aubin.

[Insp Michel Aubin]

That's a good question, sir. Thank you.

You're absolutely right when you say that nowadays we do have legislation at our disposal that allows us to address the issue of conspiracy. As you probably know, in order to establish a conspiracy, or when we bring it to the courts once we have established a conspiracy or have established intent, we're always looking for the overt act in reference to the conspiracy. We need not bring it to the very end as long as we have an overt act that clearly defines it.

The difficulty in terms of obtaining evidence is always establishing that intent, that conspiracy. That's where the challenge lies.

In the reality of police investigations, all police investigations cannot lead to interception of private communications. That's just an impossible task and an impossible feat. In my opinion, law enforcement should be able to accomplish successful investigations without having to resort in every case to the interception of private communications.

In the absence of intercepts from private communications, or of individuals who are part of the conspiracy and assist law enforcement as what is commonly referred to as source agents, it's very difficult for law enforcement to establish that very fact of intent under present circumstances.

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

And that same challenge of establishing intent would exist with this bill as well, wouldn't it? The only overt fact you're going to have, if you're seizing equipment for something that might be intended for use in a meth lab, is the intention. You have to find the intention and have evidence of it. The police are not going to seize anything unless they have evidence. You have to have part of the lab turning on the confreres and providing evidence, or you're going to have an intercepted communication. Wouldn't that be correct?

In other words, this new law isn't going to enhance your ability to get that evidence, is it?

[Insp Michel Aubin]

Not necessarily in terms of obtaining the evidence of intent, or something to that effect; I'm not necessarily disagreeing with you. I say that, but I also say that I have to go back and speak to legal services to make sure I'm well founded. I am not a lawyer.

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

I'll accept your replies in that spirit. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

It would be like any other investigation: you have to start somewhere. The step that I understand this amendment to offer is that instead of looking half-way through the total production of methamphetamine, you can begin by looking at those who have collected all the precursors and material for it.

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I'll finish up the line of questioning I was on earlier. I believe this is Mr. Lee's argument: that it would be virtually impossible for an investigation to prove intent until you got to the point of production.

My question to you, without getting into specifics, is whether this legislation would, under the proposed intent of the amendments we've discussed here, give you as investigators an opportunity at some point in time to broaden the window to the point, when you had in your mind as investigators and as a prosecution determined that there is sufficient evidence to proceed and to prove intent, that you would be able to more assertively or more preventatively provide protection to the public.

[Insp Michel Aubin]

What we're looking for is the opportunity to demonstrate intent by virtue of the individuals who for no other apparent purpose are in possession of the essential chemicals, equipment, and materials; where, without their being at the stage of final production, but by virtue of their being in possession of all the equipment, the intent is demonstrated.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Can you confirm to this committee that through the investigative process, whether it's following organized crime or whether it just leads from another investigation, or some tips, or whatever information you happen to receive, there have been cases where the RCMP has been forced to wait, knowing full well that people were in possession of these materials, until the activity actually began?

For example, they may have moved into a neighbourhood, occupied a home or a building for the purposes of production, then disappeared again, putting everybody in the area at risk. How often has it happened that you have known full well that the players involved or some of the players involved were in possession of either the equipment or the precursor materials and have actually had to wait? Has that happened?

This law would address your ability, if you were able to prove intent, to stop that activity from happening and the risk to the people in the proximity of that lab from increasing.

[Sgt Doug Culver]

I can address that today.

Here in Ottawa, in December 2002 and January 2003, the RCMP worked with the Ottawa city police department and eventually dismantled a clandestine drug laboratory that was producing ecstasy in the east end of Ottawa. The Ottawa city police executed several general warrants under the provision of the Criminal Code in an effort to wait until there was final product available in the lab. When the clandestine lab was first entered by the Ottawa city police department, this gentleman had amassed over 400 kilos of precursor chemicals, glassware, equipment, and literature on producing drugs. But to stop the process.... At that point in time there had been no offence committed, other than possibly poor or illegal storage of hazardous chemicals.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

As just a final question, then, I think it's very clear what this law will enable police to do. Does this law in any way expand—and I believe Mr. Lee's line of questioning went here as well—the ability of the police to seek a warrant or to be able to go before a justice, to further enhance your abilities as investigators to collect or gather evidence? Will this broaden that in any way?

[Insp Michel Aubin]

I'd like to answer that question, but unfortunately you'll have to speak to legal services. But allow me to expand on Mr. Culver's answer as well.

In terms of organized crime, and specific to your question, it's a known fact that organized crime is well aware of our techniques. Do they move labs during the course of production? The answer is yes. I think that was somewhat of a question in your question.

That's normal; it's a normal modus operandi of organized crime to do that. So, for us, the difficulty lies in that area.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Calkins.

Madame Freeman, I would assume that the bells will be ringing for a vote shortly, but the floor is yours.

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

Mr. Fallu, you said earlier on that you would make two amendments to this bill: one on substances and the other on equipment.

Could you explain those two amendments in more detail?

[Jean-Sébastien Fallu]

In fact, I had not—

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

We are trying to improve it.

[Jean-Sébastien Fallu]

I had not really thought out specific amendments. I was primarily making recommendations for changes.

I was recommending that the fact be taken into account—and this was just stated—that certain substances or combinations can be used to make methamphetamine, to make other drugs or to make products that are perfectly legal, such as perfume.

As originally drafted, the bill does not specify those elements; nor does it add the element of intention or knowledge of the substances, so it could completely unfairly incriminate people who are making perfume or taking decongestants.

The other recommendation dealt with equipment.

We are aware of the fact that equipment to make pills is very expansive. Such a piece of equipment could be bought second hand by people wanting to make pills of natural products that are completely legal. They could therefore have in their position equipment that was contaminated by people who were producing illegal drugs. They would be a risk of being incriminated simply because they are in position of a piece of equipment that was used illegally by others, without being aware of it and without having any intention of producing drugs.

I would therefore recommend an amendment that adds the ideas of knowledge and intention. That would deal in part with what I was just saying.

I do not have knowledge of the other laws that are in effect, but this knowledge and intention must be proven, which is not necessarily easy.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Podruzny, I know you want to make some comment in reference to Ms. Freeman's statement, and then we will conclude.

[David Podruzny]

I just want to try to draw a distinction between the active ingredients that are being used to produce illicit products, or are known to be used to produce illicit products, and the very broadly used products of commerce that might be in the possession of very, very large numbers of the public, as well as in considerable quantity in the manufacturing industry.

This doesn't seem to make that distinction. This basically says anything that knowingly will be used to produce or traffic. So it goes much further than the current class A and class B. I'm not a lawyer, but it seems to me that for all those other areas of chemicals or products that are not directly a precursor or a derivative or an active ingredient, it would be virtually impossible to prove intent for multiple-use products.

Perhaps it would be easy in the situation of an active ingredient whose known next step is an illicit product on the street. I just want to draw that distinction between everything and something specific.

[The Chair, Conservative, Art Hanger]

Thank you very much, sir.

I again want to thank the witnesses for appearing. I apologize for the confusion here in reference to that bill. But we do have some amendments and we look forward to your further testimony, in some areas, at least, regarding how this amendment may affect policing as well as the legislative side.

So thank you again for your appearance, and have a good day.

The meeting is adjourned.