Justice Committee on Oct. 22nd, 2009

[Francis Brabant]

I know that there have been discussions. It would be worthwhile to review some of the work that was done during discussions on the proposed legislation and on the preparatory work. During that time, there were choices made concerning the burden of proof. I believe that the most liberal version was not chosen.

I agree with Inspector Fontaine, and Inspector Morin will tell you the same thing. We are seeing that the reversal of the burden of proof, in the case of Quebec to say the very least, has simply not been used. Therefore, it is highly likely that there is a problem with the conditions that were pointed out to you. Perhaps this warrants reviewing some of the choices that were made when we sought to reverse the burden of proof.

To my mind, various means that could be used remain constitutional: for example, there could be a focus on the onus of persuasion rather than the burden of establishing a verdict beyond all reasonable doubt. As you know, this is the type of onus that already exists in the Criminal Code, with respect to other things. These are the types of things that could be considered.

The civil burden that you talk about is also another avenue. As I told you, choices were made. Right now, it is not being used.

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

There is a problem pertaining to disclosure of information between the defence and the Crown. It remains a problem.

Mr. Battista, are we in a transition period? Do we have enough judges to preside over all of the cases on this subject? Sometimes they involve tens of thousands of pages in a case file that judges must rule upon. This is also a problem for the defence, but is there any other way of proceeding?

When I was a lawyer, we used computers—a new technology—to manage documents for large-scale investigations. Would it not be possible to facilitate such procedures?

[Giuseppe Battista]

I think there is a relatively new element. In Quebec, in recent years, we have seen the advent of what we started to call mega trials. This is a new way of managing and organizing the work of those involved in criminal prosecutions.

Managing this information and this documentation requires a certain level of expertise that will evolve with time and practice. From a procedural point of view, difficulties and problems arise, and they cannot always be resolved in a simple manner. We simply can't just appear before a judge. We have to go before the judge who is seized of the case file. Today, trials cannot begin overnight, not for the prosecution, nor for the accused. This is impossible and inconceivable. A person learns that they are being charged, and have been the subject of a four-year investigation. This must be factored in, and the system must adjust. There is an element of learning and organization.

In fact, two weeks ago, in Montreal, there was a conference organized by the judges of the first and second instance courts of Quebec to raise awareness among both prosecution and defence lawyers and allow for an exchange on these issues. Indeed, there are difficulties in the major files, and that is what is of concern to us. The more common and frequent cases do not pose problems. Major cases present problems to prosecutors and investigators because important information is provided to them, they have to analyze and organize it, and then disclose this information. Those who receive the information must be able to confront all of that.

This is a double-sided issue. On the one hand, the more consistent and structured disclosure of evidence is, the easier it is to rule on these cases. There are cases that go to trial, even protracted and long trials, but there are also an enormous number of cases that are resolved through guilty pleas because of the police work that—

[The Chair, Conservative, Ed Fast]

Mr. Battista, I'm going to have to cut you off.

[Giuseppe Battista]

I'm sorry.

[The Chair, Conservative, Ed Fast]

We'll move over to Monsieur Petit. You have seven minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you very much.

Good afternoon, everyone. I have met several of you before, as you have previously appeared before us.

I'm going to give a brief summary because we are trying to synthesize what we are referring to as the problem of organized crime. We have traveled to different places, including Montreal, our main base in the province of Quebec. My question is addressed to Mr. Morin and Mr. Battista.

If you are of a certain age, you are surely aware of the Organized Crime Commission of Quebec, otherwise known as the Cliche Commission. You have experienced gang wars, and the bombs and recent arrest of members of the mafia. Right now, there are approximately 36 street gangs that have been identified in the city of Montreal. There are also newspapers that provide us with information; I'm referring to very well-known newspapers. There's a problem at the Port of Montreal, where drugs enter the area in containers. There are also problems at Pierre-Elliott-Trudeau Airport. All of this involves organized crime. In addition, the UN has just declared that Canada is a distribution hub for ecstasy; there is the greatest demand for ecstasy here in the country. All of this is going on in Quebec. I'm not talking about the other provinces. And that's why my question is addressed to you.

I am a lawyer in Quebec and am a member of the same Bar as Mr. Battista; in fact I am still a member of the Quebec Bar. You emphasized an important point: facilitators. I am both very curious and cautious on this issue. The Bar has already announced its position on that. As you know, there is verbal war between the Quebec Bar and your organization. They are claiming that they are being asked to compromise confidentiality.

We must formulate recommendations. There are groups of federally regulated lawyers, notaries, banks and bankers, accountants, bankruptcy trustees, and even shady government officials. They're all professionals with accreditation.

Our professional order is quite a bit older than the Sûreté du Québec, we have powers and privileges. I'd like to know what you are seeking.

[Insp Denis Morin]

Firstly, we're not talking about client-lawyer confidentiality. We are not targeting professionals. As stated in our opening statement, we are talking about the fact that currently, members of certain professional orders are subject to confidentiality. This makes our job significantly more complicated when carrying out investigations, and when those who are the subject of our investigations are entitled to confidentiality. I'm not saying that this should not exist. What we are saying is that certain standards should be reviewed when pertaining to warrants, search warrants, wiretap affidavits, among other things.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I have a second question. If you are able to do what Mr. Brabant was talking about earlier, and this poses a problem, that is reverse the onus of proof, and convince the trial judge that the professional received funds at a particular point in time, could the judge waive confidentiality in such a case? Are you willing to go to that extent?

[Insp Denis Morin]

This is already the case in investigations. However, getting to that point is a very arduous and complicated road that takes up a lot of investigative time when we initiate those processes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Battista, I'm mostly a lawyer. I have a trust account, and I would like to hear you comment on that.

[Giuseppe Battista]

I would like to understand the scope of your question. In fact, if I understand correctly what was said, there is a certain nuance. No one is challenging the very notion of professional privilege, because, in my view, that would affect the entire justice system and everyone's basic rights. What we are saying, in specific terms, is that this can sometimes be difficult and could require more in-depth investigations.

I have to say that there is a rationale behind all this. There must be a presumption that people are acting in good faith and that the majority of professionals are acting in an appropriate and correct manner. If we believe that a professional is acting criminally—because this is what we are talking about here—those are activities where professional privilege does not apply.

However, this can be difficult. At first glance, it could involve a professional with, for example, his own law firm. So, on the surface, everything seems legitimate. As I understand it, from the discussions that have gone on, professionals who are involved in that kind of activity are not exclusively involved in that kind of activity. For us, it is much easier if everything a lawyer does is illegal. When illegal activities are mixed in with legal ones, it becomes trickier. This is when the protections and the safeguards that our system has put in place become important. Protecting the professional privilege is important for the other clients, the other people whom the professional represents. So, when there are reasons to believe that some of a professional's cases involve criminal activity, with or without his knowledge, it is possible to obtain search warrants and investigate those cases, though clearly, there must be reasonable grounds to do so.

I understand that this can be difficult. I am not casting any doubt on that, hence the first point I made in my statement. I do not think that we are in situations like that. I listened carefully to the presentations that were made, and I believe that sometimes it is a matter of resources and means. It is difficult to collect and identify enough evidence to convince a court, and people in general, including myself. It is a matter of resources and means. This cannot be resolved by amendments to the Criminal Code, in my opinion.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Ms. Jennings again.

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

I will take no more than five minutes.

Inspector Morin, I would like to return to a specific subject and will ask you the same question that I asked Inspector Joyal and Inspector Fontaine. It concerns modernizing investigative techniques and methods through the government's bill.

Have you had the opportunity to become familiar with the bill? It is more or less identical to the bill that the Liberal government tabled in the House in 2005, and to the private member's bill that I myself tabled in 2006-2007, and again in 2008.

Do you think that, if the bill were to be adopted, it would facilitate the investigative work that you have to do, particularly cases of money laundering, the use of front men and of people linked to organized crime? Some people may not necessarily be involved in organized crime, but they could be involved in large-scale fraud. They are able to hide their assets and put them out of reach of the provisions of the Criminal Code, the Proceeds of Crime Act. If this piece of legislation were passed, do you think that it could be useful?

[Francis Brabant]

Thank you for the question, Ms. Jennings.

Of course, the Sûreté du Québec and, of course, its senior officers are members of the Canadian Association of Chiefs of Police. This association, for several years now, 10 years, if I am not mistaken, has stressed the importance of modernizing communications interception techniques so that telecommunications providers are willing and able to assist the police in intercepting communication, when they have legal authorization to do so.

To answer your question, I would say that, right now, some types of communication technologies that we have at our disposal must be modernized because communications are very difficult to intercept. Bill C-47, that you mentioned, and its predecessor, Bill C-74, would resolve a longstanding problem which was mentioned in the Council of Europe's Convention on Cybercrime, negotiated in Budapest. We unequivocally support that bill.

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

Excellent.

However, is...

[Francis Brabant]

The answer is yes. In fact, if there are safe havens, sanctuaries in which communication cannot be intercepted, it is certain that criminal activity cannot be detected, including money laundering.

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

Thank you.

I now have a question for Mr. De Riggi.

We established Integrated Border Enforcement Teams, or IBETs, for border enforcement. Do they still exist?

[Angelo De Riggi]

They still exist. They are still in effect, and we second the personnel and place them in integrated teams that work jointly with the Royal Canadian Mounted Police and other partners. Officers work together in the areas that I mentioned: Valleyfield, Sherbrooke and Stanstead. Those are the three main areas in Quebec.

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

Is FINTRAC, the Financial Transactions and Reports Analysis Centre of Canada involved?

[Angelo De Riggi]

No, not to my knowledge.

FINTRAC is more tied into the Integrated Proceeds of Crime program with which it works with closely.

In those areas, the work is more about jointly collecting information in order to assess criminal and contraband activity along the border.

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

At some point, there could be cases where FINTRAC could have some...

[Angelo De Riggi]

An agreement is already in place with the Integrated Proceeds of Crime Branch for whenever a border officer intercepts money at what we commonly call a customs post or a border post. An investigator from that branch goes to the location with one of our information officers, takes charge of the file and interrogates the people carrying hidden currency, either in their car or on their person. IBETs are not in charge of cases of that kind.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Ménard.

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

I would like to ask you another question, Mr. Pichette. I know that your service has been in existence since 2001. Is there an evaluation form for your services, as there is in some organizations? There are questionnaires that are sent to staff and clients. Do you have anything like that?