Justice Committee on May 12th, 2009

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I think that's a good general suggestion about prosecutors in relation to some of our work here. It seems we get a lot of criminal defence lawyers, academics, and interest groups, but we've had very few prosecutors in this part of the machinery.

Yesterday, on a different topic, the war on drugs, we had the benefit of a witness from the United States. I'll get back to Italy, although I don't want to harp on Italy.

Do you have anything to say about the international experience? In terms of our civil jurisdiction, I think you're right in saying that they have a framework in the European human rights charter that would probably be as generous as our charter. There are probably not that many dissimilarities, although the burden of proof in a civil system court is a little different--the inquisition type of thing.

Anyway, to make a long story short, do you have any knowledge of any international efforts in listing organizations? Italy was mentioned by Mr. Latulippe.

[William Bartlett]

There are examples of particular countries that have used an approach like that, as I say. They are primarily the civil countries. The burden of proof issues are different and the whole structure of a criminal charge and prosecution in the civil countries is significantly different. I'm not saying ours is better and theirs is not as good, simply that they are quite different.

Certainly Italy has used the designations of the Mafia and the Cosa Nostra. I can't really tell you what part that has really played in the actions they've been able to take against those organizations, whether it's played a major role, or whether the nature of the kinds of criminal cases that have been taken forward has depended to a great deal on that. I really don't know. That's something that we would have to take a hard look at, but generally I must say that when we're looking for models, we tend to look first at the common law jurisdictions in which the basic criminal law system is much more similar to ours.

[The Chair, Conservative, Ed Fast]

Thank you.

Go ahead, Monsieur Ménard. You have three minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

I am unhappy about the confusion that seems to be occurring. I don't think this committee is looking for legal shortcuts that would mean that when organized crime or similar charges were laid, it would have to be proved in court, which individual committed, directed or facilitated... That is not what we are talking about.

What we are talking about is this. We are wondering whether it is possible, in terrorism cases, to have a list there. It is often for offences that were not even committed in Canada, based on a list that was even drawn up by common accord among the international community.

I understand the nuance: the individuals are not necessarily charged with terrorism before there is a second step, but what we are looking for is the possibility, once there has been a legal declaration.

So the idea of judicial notice is not a good comparison because there will already have been case law. For example, take the Ontario judgment that declared the Hells Angels to be illegal. If that case went to the Supreme Court, the problem would be solved. We know there are appeals, but we never have a guarantee that it will go all the way to the Supreme Court.

To my mind, the comparison with the idea of "taking judicial notice" is not a good comparison. It is saying that if four courts somewhere in Canada find that organization X, which is called the Hells Angels in this case, is a criminal organization under section 477, we, as a society, should be able to avoid having to prove over again that the individual belongs to a criminal organization. On the rest, regarding the charge against the individual personally, considering the mens rea and actus reus, I would not want to live in a society where people are charged by proxy. I want justice to take its course for individuals.

I find it hard to understand the comparison with the idea of "taking judicial notice". And again, I would like to get the discussion back on track, about a list of criminal organizations once a judicial finding has been made.

And Mr. Bartlett, I would like to be sure that we understand the difference properly. I would point out that your senior officials, whom we hold in high regard, were opposed to anti-gang legislation in the 1990s. With Allan Rock, I met with senior officials in the Department of Justice. If we had listened to them, we would never have had the anti-gang legislation under which over 1,000 charges have been laid in Quebec, which have led to 200 convictions. I am not saying that to provoke you. I am sensing a dry technocratic argument and, in my view, it is moving us away from what should be our objective, as a society, but I am prepared to listen to your comments.

[The Chair, Conservative, Ed Fast]

Unfortunately, there's no time for a response.

[Réal Ménard, Bloc, Hochelaga, QC]

Be nice to me. My birthday is tomorrow.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Ed Fast]

No, that was exactly three minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, it is my birthday tomorrow.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you can certainly carry on from there, if you wish.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

That's exactly what I intend to do, Mr. Chair.

I would like an answer to that, Mr. Bartlett, or a comment on where you see the department coming from.

[William Bartlett]

Well, if the suggestion is that the purpose of the list would be something other than simply standing as proof of the existence of a criminal organization for the purpose of a criminal organization offence, then I suggest that raises a whole further list of issues and challenges.

The function that a criminal organization plays in the Criminal Code at the moment is not one in which a decision is made that there's a criminal organization, and something flows immediately from that. Rather, individuals are charged with offences, and offences committed in connection with a criminal organization. They're then subject to an additional offence, beyond the underlying offence, for that connection to the criminal organization.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm going to stop you there. I'm not a supporter of the terrorist list we created. I have spoken out publicly about that. But we're talking here—if I understand Mr. Ménard's position on this—of a judicial process. It seems to me that goes a long way to lending credibility to this process, a judicial process that would go on prior to anybody being put on the list. So we wouldn't be drawing from international lists, as we are with the terrorist groups. God only knows what kind of evidence goes into establishing why these groups get put onto the list and why they get off again.

Anyway, it just seems to me that what we're talking about would have much more credibility in terms of human rights, civil liberties, and the charter than our existing terrorist list, for a problem that I believe—going back to section 1 of the charter—confronts this country at a more serious level in terms of the safety of our citizens than any fear we should have from terrorists. And I think the Supreme Court would agree with that factual analysis.

Given those facts, I'm with Mr. Ménard; I'm having some difficulty with the department's position in being so reluctant to proceed on this.

[William Bartlett]

Well, I thought we were talking about a government designation of criminal organizations very much along the lines of the terrorist group process.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay. I'm not.

[William Bartlett]

When I suggested that another option might be to look at some process whereby a judge could take notice of findings, a fact made in another case before a court, Mr. Ménard said he didn't really see the appropriateness of what we were calling judicial notice.

If what you're suggesting is that we'd simply go to a court and ask the court to make a finding that a criminal organization existed, with no particular criminal charge before the court, that would be a process pretty much unknown to our criminal law. Our criminal law depends upon charges being brought against individuals and then brought before the court.

It might be feasible to have some kind of process for reporting the findings of fact--might; I'm not sure about that. That's an issue we're examining at the CCSO organized crime working group. But it might be appropriate to have them simply take notice as a rebuttable presumption in terms of the case before them of a finding made in another court where the facts seem to be the same. There are some criminal law principles that are on a much more restricted basis, but that might lead you to that.

But as for a process whereby the court simply in the abstract has a case presented to it as to whether or not a criminal organization exists, so the courts would be the one doing the designating for all time, I think the courts would have some serious concerns about any sort of process. I mean, it sounds a little like a royal commission or a judicial inquiry or something to that effect. The judiciary does sometimes participate in judicial inquiries in which there are particular things in issue, but for a court to be asked to simply establish for criminal law purposes a particular fact, whether it's the designation of a criminal organization or anything else, I think would be a pretty far-reaching suggestion.

I thought what we were talking about was a government designation process similar to the terrorist group listing process. The kinds of concerns you've voiced about that are certainly there, because it is a government process, so the courts, I think, are going to be concerned about trying to apply that to a case before them where somebody's charged with an offence.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Norlock for the last question.

You have three minutes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I find it very, very interesting that some people are against lists unless the lists meet a certain purpose. I guess I'm a bit confused, because I related, I suppose, a little more closely to Mr. Latulippe and Mr. Mainville, who have a job to do. I guess they might say they don't have time for the esoteric arguments and the debating society over the legal issues: there are bad guys out there and the bad guys need to be caught. There's something standing in the way of that and they see the development of a list as a way to get past one of the hurdles.

When you become a police officer, you're told that the common law is pretty easy to understand. It is that the average person on the street, given a certain set of circumstances, believes that something is right or something is wrong, and that becomes part of your law. But I guess we've developed a society in which the law gets very confusing, and the crowd at Tim Hortons doesn't understand it anymore. That's the crowd that goes to people like Mr. Latulippe and Mr. Mainville and asks why the heck they're not doing something about it. So then they point to people like Mr. Bartlett and say, “Draft something up for us”.

It goes back to what I call the duck and the platypus. They have beaks and webbed feet. I don't know what a platypus says, but you'd think it's a duck. A lawyer will then come up and say that the feathers are really not feathers but hair, and therefore it's not a duck, but a platypus. I guess that's the argument here. It sounds kind of strange to say that. As someone who now is at the stage of attempting to draft legislation that meets the problem, I become confused when I listen to people who are usually anti- the debate and anti- what you want to propose.

I guess in its simplest terms, Mr. Bartlett, if you were talking to somebody and ordering your double-double at Tim Hortons, how would you explain to them the difference between a terrorist list and an organized crime list and how the courts see that?

That's if there's any time left. Sorry about that.

[The Chair, Conservative, Ed Fast]

There's one minute.

[William Bartlett]

I guess I'd have to say that it's not a simple question. I appreciate the difficulties of trying to explain these very complex questions to the guy at the Tim Hortons or wherever.

The kinds of concerns I've discussed are concerns that we've heard from prosecutors who actually have to prove these cases. It's not an esoteric or academic position they're taking; it's a matter of looking at the kinds of challenges they face all the time and saying we're just not sure that it would help, and it could raise a whole new host of challenges. They have some concerns with trying to deal with it that way.

What I'm saying is that I don't think there are any simple answers, and this certainly raises as many challenges as, I think, it does opportunities. As I've said, we haven't concluded our discussions on the issue, but we've certainly heard a lot of reasons to be hesitant about embracing the idea.

It is a very complex matter, but maybe the one simple thing is that if you're going to make certain consequences depend upon showing that somebody is committing crime not as an individual but in connection with a criminal organization, then there's going to be an evidentiary burden and challenge to show the link between what they're doing--drug trafficking on the street, extortion in somebody's office, or whatever--and a criminal organization. You want consequences to flow from that, so there is going to be a burden in showing that additional element and then asking for criminal consequences to flow from it.

[The Chair, Conservative, Ed Fast]

We're out of time today, unfortunately, but hopefully we can move ahead with this.

Mr. Bartlett.

[William Bartlett]

Mr. Ménard was asking about a brief. I don't have a brief, but I have some remarks I made up for myself. I could clean them up and have them translated. I got the invitation to appear just last Thursday. I didn't have time to prepare a brief.

[The Chair, Conservative, Ed Fast]

We understand that. Your remarks are recorded in the blues anyway, so we do have a written record of what you said.

I thank all of our witnesses.

We're adjourned.