Justice Committee on Oct. 7th, 2009

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

Thank you, Mr. Chair.

I'll start off by saying that I need to move an amendment. I caught the drafting just before I came into the committee today and there was an error in it. Perhaps I'll give an overview.

I'm attempting to limit the use of this section to two categories of people. One is a police force. That's what is not in here. That should have stayed in, that any police force can ask for a document to be created, presumably to create a false person for investigative purposes. Clearly a police force should have that authority, so that should remain in there. The second category is the two ministers: the Minister of Justice and the Minister of Public Safety and Emergency Preparedness.

I have to admit that I didn't pick this up until fairly late in the process of our review of Bill S-4, but I cannot understand why we would be extending immunity to such a large category of people. As clause 7 stands now, as proposed, it's all police forces, and I don't have a problem with that as it's obviously necessary, but then it goes on to include the Canadian Forces, with no limit.

You can understand that within the Canadian Forces certainly their intelligence units and their military police, quite frankly, might need it, but it's not limited to that. It's all Canadian Forces. The way I read it, and I don't think there's any way of reading it but this way, the average soldier, a private, could go into the office in Thunder Bay where we register our birth certificates and ask to have a birth certificate created and they would have to comply.

It then goes beyond that and includes all federal government agencies and all provincial government agencies. I cannot understand why we would extend that kind of authority. It's just so ripe for abuse.

This clause is needed for the purposes of allowing our police forces, our intelligence services, to create false identities in order for those individuals operating in those fields to be able to conduct their normal investigative role. Why would we extend this?

I was thinking yesterday that the Children's Aid Society could walk in and ask for that kind of documentation to be prepared, and the department that creates those documents would have to prepare them.

Similarly, if you were to go to one of the credit card companies and say that you needed to have this document created and ask them to give you a credit card in a person's name, the private sector would have to do that. Municipalities would have to change identification of ownership of buildings if that were asked for, and it could be asked for by a huge number of people the way the clause is written.

As I said earlier, with this amendment I've tried to keep the police forces involved, obviously, but then move that authority to the two ministers at the federal level, who would obviously be able to delegate that authority to the appropriate people within their departments.

[The Chair, Conservative, Ed Fast]

Just for clarity, we are dealing right now with the amendment that has reference number 4126584.

Mr. Comartin, you said you wanted to make a change to that amendment.

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

Yes, I would if it were permitted, Mr. Chair. The amendment reads now, “document at the request of”, and then says “the Minister”. After the “of” there should be inserted “a police force or”, and then it would go on: “the Minister of Justice or the Minister of Public Safety and Emergency Preparedness”.

[The Chair, Conservative, Ed Fast]

All right. The amendment would read as follows: that Bill S-4, in clause 7, be amended by replacing lines 24 to 27 on page 5 with the following:

document at the request of a police force or the Minister of Justice or the Minister of Public Safety and Emergency Preparedness

Is that correct?

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

That is correct.

[The Chair, Conservative, Ed Fast]

All right. That is the amendment that is on the table.

Monsieur Ménard.

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

I think I heard you say lines 24 to 27, when I thought it was lines 34 to 37.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

It is not the same in English.

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

All right; I understand. Lines 34 to 37 have to be translated.

I fully understand the argument made by our colleague, Mr. Comartin. I agree with him that far too many people are able to authorize the production of a false document. However, in similar situations, under other legislation, someone could apply for authorization, not only to the federal Department of Justice or Public Safety, but also to provincial ministers or Attorneys General.

That is why I am proposing the following subamendment: that we add, after “the Minister of Justice or the Minister of Public Safety and Emergency Preparedness”, the following: “or the Attorney General of a province or territory”. That way, there would be some control.

[The Chair, Conservative, Ed Fast]

Thank you.

Is there anybody else?

Mr. Rathgeber.

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

I think the translation is correct the way it is written.

I appreciate Mr. Comartin's concern, but on a proper construction, the words “in good faith” provide a defence to individuals working for those government agencies who are acting in good faith. But if they are doing it for some personal or for some nefarious purpose, then presumably they will be charged.

Mr. Comartin is shaking his head, so perhaps he might explain to me why my interpretation of this is incorrect. But failing his being able to convince me, Mr. Chair, I will be voting against his amendment.

[The Chair, Conservative, Ed Fast]

Mr. Murphy.

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

Could we hear from somebody—I don't know whether it would be Department of Justice people or the parliamentary secretary or who.... We are all trying to struggle with this. We think we know what the intention was, but was there some thought that went into the breadth of permission? We all get the good faith thing, with all due respect. It is a defence if it isn't in good faith—or not a defence; it's prohibited if it's not in good faith. But why would it be police forces, Canadian Forces, and a department or agency of a federal or provincial government? Why is it so broad? Maybe we need to know a little more about law enforcement to answer that question.

[The Chair, Conservative, Ed Fast]

Mr. Kilkie.

[Marke Kilkie, Counsel, Criminal Law Policy Section, Department of Justice]

Yes, I can answer that, because we did give consideration to it.

I'll point out this: the provision is a defence for the person who makes the document. As for the entities listed, it's not a “member of” one of these entities; it is the entity itself. So it's not every member of a police force. It's a request made on behalf of and in the capacity of the organization.

The reason it is so broad, including, for example, provincial government departments, is that we are also talking, in terms of the use of covert ID, about such officers as wildlife officers, who also do undercover work and who aren't in police forces typically but are employed by a government department, so that it would be their department, the entity to which they report, that is making the request—on their behalf, if that helps.

[The Chair, Conservative, Ed Fast]

Yes, it does. Thank you.

We'll go to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I guess I'm coming at this from the point of view that up until the time this legislation is passed, all these agencies have been able to access false identities, if I can put it that way, for the purpose of their undertakings. What we're going to be doing is slapping on a general prohibition against false identities. I would be reluctant to freeze out any existing investigative agency that may be employing these measures.

I think our people from the department have given us the example of wildlife officers who might require this kind of exercise, but there may be others out there we don't know about. I would proceed cautiously before I would issue a blanket prohibition against government agencies being able to do such things.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Go ahead, Monsieur Ménard.

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

I do not understand why a parallel has been drawn between the amendment proposed by Mr. Comartin and the issue of good faith. As I see it, good faith is always involved when someone assumes a false name, in order for that action to be legal. The goal pursued must be in the public interest; for example, when a person has to use a false name to trap someone breaking the law, so that the investigation can move forward.

Before the Criminal Code was amended, such cases were dealt with through the case law. They were essentially resolved by applying the good faith principle. I do not recall the name, but I know that was done in the wake of a Supreme Court ruling dealing specifically with the use of a false identity for the purposes of a police investigation, as well as the fact that police officers had to break the law.

Let's take an obvious offence—for example, buying drugs; police officers had no choice but to break the law. With respect to assault, they were protected by something else. It was an obvious case, but there have been even more serious cases, where police officers had to act illegally. The judgment there was based on good faith and the fact that the police were pursuing a public interest goal.

However, because the definitions were too vague, the Supreme Court invited Parliament to legislate. It did bring in other provisions on this. I believe the provisions here—perhaps the witness could tell us—are intended to mirror those made to the Criminal Code in the wake of that Supreme Court decision, and are along the same lines.

The requirement for the good faith principle to be engaged is a necessary one. And, in fact, the good faith requirement is not the only one. The action must also be in the public interest or be necessary as part of a criminal investigation. When the decision was made to go the legislative route, as opposed to relying solely on the case law, in order to allow police officers to break the law or use a false identity—and here we are talking only about a false identity—some control mechanism had to be included.

I support Mr. Comartin's argument, because it seems to me that the control mechanism here is extremely week; there are too many people able to exercise that control. It should be given to the Department of Justice or the Department of Public Safety. However, because the administration of the criminal justice system is a provincial responsibility, it should, in fact, be given to the provincial Minister of Justice, or the federal Minister of Justice, who also has a role to play in the administration of justice.

I am not going to draw a parallel between Mr. Rathgeber's remarks and Mr. Comartin's amendment, but I do think it would be advisable to retain the words “in good faith”. As Mr. Murphy pointed out, it is almost pointless to have it in there, because it is obvious that the individuals involved must be acting in good faith. That is part and parcel of the activity we are seeking to protect.

[The Chair, Conservative, Ed Fast]

Thank you.

Ms. Jennings, did you want to speak?

By the way, welcome to the committee. I understand the report has been adopted, so you're officially part of the committee.

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

Thank you. I'm ba-a-ck.

I actually like clause 7 as it reads now in Bill S-4. I think our colleague, Maître Serge Ménard, dealt very well with the issue of the Supreme Court of Canada's decision about illegal acts committed by, for instance, members of police forces in the course of their duties while working, for instance, undercover. It actually does cover also the use of force, not in defence of themselves but, for instance, when they're undercover in a criminalized biker gang and have to take part in beating someone.

[An hon. member]

[Inaudible--Editor]

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

Yes, it was covered.

I think the issue here is whether or not the person made the false document—at the request of any of the different agencies that are mentioned here—in good faith. And if the agency is acting illegally, we have provisions in the Criminal Code to deal with that. I can in fact see, at times and given certain investigations, the requirement that one would want to have, for instance, a provincially issued ID. You would have the police force requesting la Société de l'assurance automobile du Québec, for instance, to issue a driver's permit. It would in fact be a real driver's permit issued in the course of an investigation, and this provision would protect the employee who issued it from criminal charges. Right now, the police officer is protected, but not the person who actually produces the false document.

So I like it as it is; I don't like the amendment. I think the amendment is much too restrictive. If we were to go with the amendment, then it would have to be amended seriously to add the Minister of National Defence, the provincial ministers of public safety or solicitors general, and all of the different levels at which you could have official documents produced that are false documents but actually authentic documents.

So I like it the way it is and I will not support the amendment, but I will support clause 7.

[The Chair, Conservative, Ed Fast]

All right.

Mr. Comartin, do you want to have the final word?

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

Thank you, Mr. Chair.

First, with regard to good faith, I think this is clear, but I'm going to repeat it just to be clear about why I was shaking my head. I think the officials have confirmed this: the good faith defence as an immunity only applies to the person who's creating the document. It does not require the police force as it stands now, or the Canadian Forces or any of those departments, to be acting in good faith in requesting the document. I suppose if we had that in there, it might be some additional thing.

With regard to the point about interfering with current practices, it's hard to say. Some of the current practices in creating false identity may in fact be illegal under existing law, and I don't think this should in any way be a guideline as to whether we should be interfering with that. What we're doing in the rest of the bill, assuming it becomes law, is creating a new legal authority to create that. It may in fact in some cases be confirming what our existing practice is, which may or may not be illegal, but I don't think that should be our consideration for this.

As far as the subamendment is concerned, I agree. Mr. Ménard is correct that we should be extending the authority to the attorneys general and the solicitors general right across the country. I probably should have put that in myself. I certainly would be supporting his subamendment. I think it's appropriate that we do that. They would then have the authority at both the provincial and territorial levels and at the federal level to be able to designate officials who would have the authority to make the request for these types of documents.

You don't need to add, as Ms. Jennings has suggested, all of the federal departments. That is not required. They can take care of that at the federal level by delegating that authority.

That's my summation, Mr. Chair. Thank you.