Justice Committee on Oct. 7th, 2009

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I would like to ask officials from the Justice Department to give us the benefit of their opinion on the wording, in both English and French. The last sentence reads as follows, and I quote: “[...] for use in the course of the public officer's duties or employment.”

In English, it is “for use in the course of the public officer's duties or employment”. Under law, jurisprudence, would this automatically assume that it was authorized if it's in the course of their duties? Do we have case law on that?

[Marke Kilkie]

We have extensive case law on officers being held to a standard in the lawful execution of their duties, and it's that kind of concept.

I'll clarify how some of section 25.1 would operate because I think it would be helpful. The competent authority under section 25.1 is designed to be the minister personally, because that is to designate an officer to make use of the scheme. It's not to authorize individual acts operationally within the scheme. That is done by the senior officer, a different concept, and only in very limited circumstances. It's only where there's anticipated serious loss or damage to property.

An officer designated under section 25.1 and using the scheme has discretion as to acts that are committed if they are properly acting under the proportionality test built into the scheme. They are not being directed to do each act, for the vast majority of acts. That is not actually how section 25.1 would operate. So to have the competent authority as the minister authorizing the use of a covert identification would not even line up with section 25.1 if it were the vehicle of choice to be used. I just wanted to clarify that as well.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So if I understand the explanation you've just given.... Let's say there's a police operation investigation that's ongoing. Sometimes they take several years. In the course of that lawful investigation you have one or more officers who are authorized and in fact ordered to go undercover. In order to maintain the secrecy of their identity, there are false documents prepared to provide them with an identity.

In the course of being undercover, they may commit illegal acts. There are already laws that have been made to protect them, such as proportionality, etc. If this amendment went through, that particular officer would have to get authority every single time. Is that what I'm to understand?

[Marke Kilkie]

That is the way I would read the amendment.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

That is not feasible.

[Marke Kilkie]

Exactly. As well, I would add to your description of multi-year operations the point that the same covert identity, I'm told, is used by the same officer from investigation to investigation. A great deal of effort has gone into nurturing a covert identity for an individual officer, and that may be transported to different investigations.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Ménard and then Monsieur Petit.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I just wanted to say that the arguments made by Mr. Kilkie have convinced me that I should not support this amendment.

[The Chair, Conservative, Ed Fast]

Thank you.

We have a point of order from Mr. Comartin.

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

Based on that explanation, I'll withdraw the amendment, with unanimous consent.

[The Chair, Conservative, Ed Fast]

Do we have the consent of the committee?

[Some hon. members]

Agreed.

[The Chair, Conservative, Ed Fast]

The amendment is withdrawn.

We'll move on to the third NDP amendment, which is reference number 4127692.

Mr. Comartin, do you want to state the amendment?

We have a point of order.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I don't believe we've passed the clause, Mr. Chairman.

[The Chair, Conservative, Ed Fast]

You're absolutely correct.

We're dealing with clause 9. We have no amendment to that clause. Shall clause 9 carry?

(Clause 9 agreed to)

(On clause 10)

[The Chair, Conservative, Ed Fast]

On clause 10, that was the reference number I quoted, with the last three numbers being 692.

Mr. Comartin.

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

Mr. Chair, I've had some indication that there's some concern as to whether this is admissible. Could I have a ruling on it before I go into the explanation?

[The Chair, Conservative, Ed Fast]

I'll gladly give you a ruling on that.

Again, just to clarify, we're dealing with amendment 4127692. The amendment seeks to amend section 380 of the Criminal Code.

Marleau and Montpetit state on page 654 that “an amendment is inadmissible if it amends a statute that is not before the committee or a section of the parent Act unless it is specifically being amended by a clause of the bill”.

Since section 380 of the Criminal Code is not being amended by Bill S-4, it would be out of order to consider such an amendment. That would be my ruling. The ruling is not debatable, but it can be challenged. I'm in your hands.

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

I'm not challenging it.

[The Chair, Conservative, Ed Fast]

Seeing no challenge, we'll move to clause 10, reference 4127576.

Mr. Comartin.

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

There's a correction here as well. It should read “replacing lines 38 through 41”, not “replacing lines 38 and 39”.

[The Chair, Conservative, Ed Fast]

So with that change the amendment would read that Bill S-4 in clause 10 be amended by replacing lines 38 through 41 on page 7 with the following. The rest would remain the same.

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

That's correct. There would have to be a corresponding change in the line numbers for the French version.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, why don't you start.