Justice Committee on June 15th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is the thirty-first meeting of the Standing Committee on Justice and Human Rights. Today is Monday, June 15, 2009.

You have before you the agenda for today. In the first hour, we'll hear one witness on our study on declaring certain groups criminal organizations. During the second hour, we'll begin our review of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).

I'm hoping that at the end of our meeting we will leave 10 minutes for a brief in camera discussion on our study plan, because there is an issue that has come up about perhaps bringing in a witness early for next meeting. I'd like to leave 10 minutes for that.

First of all, I'm pleased to welcome Paul Burstein, a lawyer with the firm of Burstein, Unger--from Winnipeg, I believe--who will be assisting us with our study on declaring certain groups criminal organizations.

You're actually from Toronto. That's where your firm is based.

[Paul Burstein, Barrister and Solicitor, Burstein & Unger, As an Individual]

Yes, exactly. Like everyone else from Winnipeg, apparently, I left and moved to Ontario.

[The Chair, Conservative, Ed Fast]

You understand the process. You have 10 minutes to present and then we'll open the floor to questions from our committee members.

[Paul Burstein]

Thank you very much, Mr. Chair. I hope not to use my 10 minutes, because I appreciate that the committee prefers to engage in the dialogue--and I quite agree--and tends to get more out of the questions and answers.

I do want to thank you for inviting me. I always enjoy coming to the Hill and participating in this committee's work. I'm certainly proud to be able to participate in the legislative process.

I feel somewhat prouder today. As I was telling Mr. Chair, I have the distinct pleasure of exhibiting the process to my eldest daughter, Courtney, who has come with me.

Just to give you a bit of background about why I might know something about the issues you're considering, I've been a defence lawyer for almost 20 years. For probably the last 15 years, I've done nothing but mega-trials consisting of many gang cases.

Indeed, I was counsel for one of the two accused in the Lindsay and Bonner case, the Hells Angels prosecution that I know has come up quite a bit in discussion before this committee. I also represented one of the leaders of the first street gang prosecution in Ontario. That started about five years ago, I guess. I have represented one of the terrorists charged in Brampton. Obviously, some of the parallels have been drawn before you by some of your witnesses.

I've been a professor at two of Ontario's law schools for over 10 years and I've published some articles dealing with the prosecution and defence of gang cases. I've spoken to Ontario Superior Court judges on the topic.

Just as a couple of other points of interest in terms of my background, I also sit on the Legal Aid Ontario exceptions committee, which is relevant because it is the committee that manages defence funding for all mega-trials and major gang cases in Ontario. So even for those that I'm not involved with as a lawyer, I'm involved in the oversight committee in terms of what goes on in those cases.

Finally, as a director of the Ontario Criminal Lawyers' Association, I was their representative involved in dealing with and responding to the LeSage-Code report, which I know has been mentioned a number of times in evidence before this committee. As I say, I was involved in drafting the recommendations, so I know quite a bit about that.

Just to sum up in terms of my background, I think I do have a somewhat unique perspective. I've been on the inside of these cases looking out, on the outside looking in, and from the top looking down, so I really have had the opportunity to consider from different perspectives the issue that you are looking at.

I don't have much new to tell you. I'm sorry to say that. I've read the evidence of all the witnesses who've testified before you on this issue. You've already heard the evidence from the federal prosecutors and the Department of Justice officials, who have told you that listing, or creating a list of criminal organizations, is both unnecessary and unhelpful for what they need in court. Their evidence, it seems, was supported by the likes of Professor Kent Roach in terms of the constitutional problems and the lack of benefit, as well as Professor Gordon from Simon Fraser University.

I'll just leave you with this in terms of my opening remarks. My 95-year-old grandfather always used to tell me, “Don't fix it if it ain't broke.” I have a slightly modified version of that. I always prefer to say, “Before you fix it, make sure it's really broke”, because you might do more harm by trying to fix a problem that's not such a big problem.

I'll just say to you that to the extent that the police make a very convincing case that gang violence and gangs are a problem in this country—and I don't dispute any of that—having read their evidence, there just doesn't seem to be a connection between whatever problem gangs may present and creating a list of criminal organizations. It's not going to solve any of the issues they've addressed. If anything, it's likely to exacerbate them.

The only thing that listing can really do is create trial efficiencies, and the prosecutors—and I endorse their view wholeheartedly—tell you that it's not going to achieve much of anything on that front. Also, the collateral effects of listing are not worth the effort.

I'll just say one last thing. There are better ways to achieve what you want to achieve by creating a list without having to go through all the problems of creating a list. I'm happy to outline those, if you're interested.

Those are my remarks.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Burstein.

I believe, Mr. Murphy, that you're going to go first. You have seven minutes.

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

Thank you, Mr. Chair.

I want to thank you, Mr. Burstein, and I want to welcome your daughter Courtney here as well. It's nice to have young interested people here. I assume she's here under her own volition--don't answer that.

It's nice to have you here. Obviously you have a breadth of experience in criminal matters and in writing reports. However, I want to drill down on a couple of things you said. They go to the listing.

You will know that we created such a list under the terms of the ATA, the Anti-terrorism Act; it's in amendments to the Criminal Code. It takes some 26 pages of the code. We've spent about four pages, I think, of the code with respect to organized crime and the designation thereof.

We've had what I would say is some pretty compelling evidence from, yes, policemen and municipal leaders that the designation of a criminal organization is sucking the life and the resources out of the court system and their court officers and disclosure clerks. One police department said quite categorically that they're having trouble getting experts designated--because it requires an expert designation with respect to what is a criminal organization.

So your characterization of reading the evidence differs from mine in hearing the evidence, and I guess that goes to the empathy you have for witnesses as opposed to reading it in black and white, for they say that Nixon actually won the Kennedy-Nixon debate, which is unbelievable if you saw it on tape. Maybe this goes to that.

Maybe, however, Mr. Burstein, you were looking for an answer that keeps alive the designation of criminal organization through expert testimony. It's truly a more advocacy-driven vehicle; there's no question about that. You'd agree with me. I just can't see how it wouldn't help to have one of two things: either the list, fine, or some way--people use the term “judicial notice”, but that's not really what it is--of having cases like Lindsay as precedent. It's very difficult if it's evidence-based.

That's where we sort of hit the road with the Department of Justice and say, well, look, these are fact-by-fact situations, so for the declaration of a group like the Hells Angels motorcycle club as a criminal organization, it's impossible to have it apply to the next case, even though it's the same organization. I wish there were a way to make that happen. Maybe with your opening remarks about your open-mindedness, you could help us in that way.

Do you think there is a way to shorten, if you were on Lindsay, the Lindsay result?

[Paul Burstein]

Let me just say briefly, in addressing one of your points, sir, that the concerns the police have about disclosure in these mega-trials will in no way, or in a very minor way, be assisted by this list. The disclosure concerns they have in terms of the resources required are still going to be there. Just recently in Toronto, I think it was this weekend, they arrested a hundred people on a street gang prosecution. It's that that causes the disclosure problem. The part of the disclosure dealing with the expert evidence dealing with gangs is a very small piece.

More importantly, as you heard from...I think it was Mr. Bartlett, who is one of the senior Justice officials, all that “expert” evidence dealing with the structure of the gang, etc., will still be germane to a case, irrespective of whether you list a criminal organization, because you still have to prove membership by all the participants. In other words, as you heard Mr. Bartlett say, in most of these cases--and I'm going to tell you in 99.9% of these cases--the evidence the crown will use to establish the “criminal organization” is the same evidence as they're going to lead to establish the individual accused knowing membership in that organization. In other words, it's not going to save anything.

The reason I say it's actually just going to waste time is much for the reason Professor Roach gave: it's just going to open up the door to defence lawyers--I'll say like me, but hopefully not like me--raising collateral issues, chasing down a judicial review of the listing process, when really the issue is whether the people before the court were part of whatever listed organization there is. You had this in Lindsay and Bonner. I just want to say at the outset that I wasn't on the case for the trial; I was there for the constitutional challenge. So when you hear that the case took 8, 9, 10, 11 months, that was through no doing of mine--before you pillory me for that. But I know a lot about it.

In the Lindsay and Bonner case the crown took six months to prove that Hells Angels International was a criminal organization, and the defence never really contested that. It didn't stop the crown from putting on the public spectacle and adducing all the evidence to get that evidence before the court to get the finding. The real issue was whether the chapter or the group that Lindsay and Bonner were part of, the Hells Angels in Woodbridge, were part of that organization that the crown had spent six months to prove. In other words, part of the reason for all the delay and the needless court resources could have easily been avoided if the crown had gone back to what the definition of the offence is.

This is, I guess, where I come to answer your main concern, sir, which is that we're losing sight of what Parliament criminalized. It didn't criminalize gangs, it didn't criminalize outlaw biker gangs; it criminalized criminal organizations with a very simple and, I think everybody contends, a very wide definition: three people engaged for essentially the same purpose for material benefit of the gang where the main purpose is going to be criminal activity. You don't have to prove that they have a name. You don't have to prove that they have membership rituals. But in most of these cases the crown seeks to do it because it helps with the public spectacle. I'm not saying there's not a valid purpose to that. There's no doubt the public feel safer when the police are taking street gangs off the street. But it's not necessary for the trial is all I'm saying.

So when the police say that listing will help with trial efficiency, it's not necessary. That's my point. If you want an answer to whether or not you should criminalize being a member in a gang, that's a separate issue, and I'm happy to address that, but in terms of trial efficiencies it's overkill.

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

The reason for the organized crime designation is to ratchet up the penalty. You didn't say that.

[Paul Burstein]

But the crown can prove the offence without ever having to say they're Hells Angels or they're Bandidos. In other words, it's an unnecessary label. That's the part that takes the six months, because then the crown needs to go into the history of the Hells Angels, and it's just completely unnecessary to get all the enhanced penalties, like the parole ineligibility. Everything you say could still be achieved without labelling it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Mr. Ménard. You have seven minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Welcome. I know that you have many years of experience, but I am a little surprised by your testimony. You have practised in this area. You have been asked in your capacity as a professional to defend members of criminal organizations. Of course, I am not holding that against you, but we must all remain aware of the fact that this is the point of view from which you are testifying here today.

Further, I think that you should carefully reread the brief which was presented by Mr. Randall Richmond from the Bureau de lutte au crime of the Department of Justice of Quebec, and the brief presented by the RCMP. On this committee, we don't feel it is normal, as far as criminal organizations are concerned, that if a trial takes place in Manitoba, Saskatchewan or New Brunswick, it must be proven in every case that the individuals involved are indeed members of a criminal organization. If it was possible to avoid this, the Crown would save a lot of time and resources. In short, that is our objective.

You did not mention the second objective at all, which concerns intimidation. In the course of the trial held in Ontario, the judge pointed out that a member of the Hells Angels had left his wallet on a bike which he had ridden during a rally, and that because the Hells Angels are so intimidating, he did not even need to fear that his wallet would be stolen.

By declaring that these groups are outlaws, we want to ensure that they become less intimidating and less terrorizing to society. Of course, I believe that modalities will be applied. There will have to be a certain number of trials and the list will have to be established based on modalities which respect certain principles. I believe that in establishing such a list, you are dealing rather quickly with the committee's objectives. I imagine that your professional background explains that to some extent.

I will give you the opportunity to reply. I will then have other questions for you. In fact, I would ask you to say hello to your daughter for me.

[Paul Burstein]

Thank you.

I'm sorry, you're quite right. Mr. Murphy had raised that question.There were a lot of things in his question and I was trying to address as many as I could.

You have a mechanism right now and--I guess this is the one thing that I should have put in my opening remarks--there's no need to create a list. There's no need to create a special judicial notice provision or an evidentiary presumption, which is really what has been discussed here, whether or not it has been labelled as such.

Right now there is a provision in the Criminal Code, section 657.3, that allows either party, certainly the crown, to have an expert prepare an affidavit, and as I'm sure most, if not all, members of this committee know, an affidavit can have exhibits. You can take the testimony, the evidence, that was given in the Hells Angels case in Barrie in the Lindsay and Bonner case, and you can have the same expert or another expert who is going to testify in Manitoba or the other Ontario case, have read the testimony, attach it as an exhibit to his affidavit, and it becomes evidence in the next case. Unless the defence has something that is going to challenge that or that's going to be a different challenge than was raised in the previous case, I would have thought that the good sense of most judges is going to apply in the same way as this committee is saying, which is, why would the finding in one court not apply to the next?

[Réal Ménard, Bloc, Hochelaga, QC]

In the course of the testimony we heard, some witnesses explained that, with regard to the three trials involving the Hells Angels, the judges were not satisfied with affidavits only, and had asked for evidence linking the individuals to the organization. You said that affidavits are sufficient, but based on what we were told affidavits alone did not satisfy the judges. If that had been an option, it certainly would have been used. However, the decisions we were quoted do not correspond to what you are telling this committee.

[Paul Burstein]

I don't know if that's entirely correct, and I beg to differ in this respect. The judgments say they won't rely on the other judgment as the basis for the finding in their case. I'm reasonably confident I'm correct in this: for the crowns in Ciarniello--that's the second Ontario case, Justice McMahon's decision--and then there was the Kirton case, the one in the Manitoba Court of Appeal, the issue was whether or not in the Kirton case in Manitoba they could rely on Justice Fuerst's finding in the Lindsay and Bonner case. There was no suggestion that the crown in Kirton had done the right thing, which the Criminal Code allows. The crown does this all the time for other expert opinion evidence.

It doesn't mean that the defence isn't allowed to cross-examine, but the judge has the discretion as to whether or not to permit that kind of cross-examination, and the judge can demand from the defence this: what's the reason you're insisting that I drag the crown's expert on gangs all the way to my court when they were cross-examined? You can read it in the transcript that has been provided to me, counsel. Why would I allow you to ask the same questions again?

It's very rare that an expert's credibility is the issue. It's always the credibility of the science. So it just hasn't been used.

I'll say one last thing. It's because the crown thinks it's their duty to present the evidence again, and they haven't tried doing this. I'm sorry, but I beg to differ with your characterization.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have enough time left to ask a brief question?

Let's talk about compatibility with the charter. This is in fact the type of information we were hoping to get from you. You said that it is not necessary to reach the objectives, but do you anticipate any problems with regard to compatibility with the charter?

I would be interested in hearing your views on this matter.

[The Chair, Conservative, Ed Fast]

A very brief answer, please.

[Paul Burstein]

The difference is that if you do it the way I'm suggesting, almost all of your charter concerns evaporate, because now if there is new evidence in the second case--let's say it's the second Hells Angels case, for ease of reference--that wasn't presented in the first Hells Angels case that I say may effect the judge's decision as to whether the Hells Angels Manitoba are a criminal organization, I'm not precluded from presenting that to the decision-maker. If you make it a listing process, you have a whole host of problems in terms of whether I'm getting full disclosure of whatever the decision-maker, the judicial body or the cabinet body, is using to make the listing decisions. You're going to have delays because you're going to have collateral attacks. In my method, it's the same decision-maker making one decision. There will be virtually no viable charter claims if you just use the normal evidentiary process to decide the issue. Eventually, it will become so commonplace that the crown will have a standard affidavit that they'll just send around the country. Like the prosecutor from Alberta--I think that was his name--told you, in many of these cases the defence doesn't have anything to say; they just don't have instructions from their clients to admit it.

It's the perfect scenario. The crown tenders the affidavit. I don't have the authority to admit it on behalf of my client, but I have nothing to say in answer, so there's only one side of the story. The judge has to make the finding that it's a criminal organization, and you have no problems, no collateral judicial attack, no wasted time, no charter challenges going to the Supreme Court of Canada. It's simple, nice, and clean.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you have another seven minutes.

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

Like some of the other members of the committee, I'm a bit taken aback with your concept of this overkill, doing it repeatedly. Have any of the judges, I guess maybe in Manitoba or Ontario, made any comment on the role that the crown played here in terms of it being overkill?

[Paul Burstein]

When I say “overkill”, first of all, a judge would rarely say that, for a lot of reasons. Number one--

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

Excuse me, I have to interrupt because of time. So nothing in the cases?

[Paul Burstein]

No.

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

What about any judge who commented on this on the panels, the continuing--

[Paul Burstein]

Absolutely. When I spoke to the Ontario Superior Court of Justice about two years ago, it was a major concern of the entire group--there were about 150 there--that the crowns were engaging in overkill in these prosecutions, and especially because the terms of the code don't need it. But it certainly helps with the public spectacle. I'm not saying that's not a valid purpose, but you can't have your cake and eat it too. If you want to over-prosecute and prove that the Hells Angels, or the Malvern Crew, or whatever other street gang is a criminal organization, you can't then complain that it's taking too long when it's the crown who's actually introducing the evidence.

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

In terms of the methodology or the process of using the affidavit and filing it, is the determination of whether the defence is going to be allowed to cross-examine on it in subsequent hearings done at pretrial or during the course of the trial?