Justice Committee on Oct. 22nd, 2009

[The Chair, Conservative, Ed Fast]

Point of order by Ms. Jennings.

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

I would like to remind you, through the chair, that Maître Battista is here representing the Quebec Bar Association, and therefore the opinions that he is expressing here are opinions that the Quebec Bar Association has endorsed through its committee on criminal law. He has said that he may have personal opinions on a variety of subjects that have been raised here, but that the opinions he is expressing are those of the Quebec Bar. I want that to be clear.

I'm not sure whether Mr. Rathgeber, when he's saying “you”, is referring to the Quebec Bar Association or to Maître Battista.

[The Chair, Conservative, Ed Fast]

Hold it. There was a point of order around this comment. I don't believe that was a point of order, but I believe that Mr. Battista, being a lawyer, will understand that when he responds he will let Mr. Rathgeber know whether it's a personal response or a response made on the behalf of the bar association.

Mr. Rathgeber, you may continue.

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

I understand that the witness is representing the bar association, but I'm still waiting for an answer from him.

[Giuseppe Battista]

The understanding in the criminal law is that where there are maximums, the legislator is saying how serious a particular offence is. That is why there are maximums. They distinguish different offences. They distinguish different crimes. For example, there have been historically set “overs” and set “unders”. When I started practising, the cutoff was $200, and it went up to $1,000. Now we're at $5,000. Society evolves. The legislator has always said that if it's less than $200, we will treat it this way. If it's more than $200, we will treat it that way.

If there is an assault causing bodily harm—

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

Then why can't a legislator speak to the appropriate minimum? Why is that any different from when the legislator, as you just stated, speaks to the maximum?

My problem with your logic is that it's not judicial discretion that you're worried about, but it's because you think the sentence is ultimately going to be too harsh. I think it's disingenuous if you frame it in any other terms.

[Giuseppe Battista]

You're obviously entitled to your view on that, and I will fight for your right to express it and hold it. But I think there is a very clear distinction that has historically been made between what a maximum is supposed to say about an offence and the idea that a minimum will reduce judicial discretion. That is the purpose of the minimum. The purpose of the minimum is not to allow the judge to do anything other than that.

That is the objection we have on that aspect.

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

I'm assuming that, with Ms. Jennings' intervention, that's probably my five minutes.

[The Chair, Conservative, Ed Fast]

You have one more minute.

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

With respect to professional organizations that sometimes further organized crime, could you briefly comment, Inspector Morin?

Yesterday the government tabled legislation that would make it an aggravating factor in white collar prosecutions if an individual failed to comply with the licensing rules that were the professional standards of his organization. I don't know if you're aware that that becomes an aggravating matter in sentencing. Do you believe that will be a useful tool in the police person's toolbox?

[Francis Brabant]

Obviously, because of what Mr. Morin said, when we address the question of a professional secret or other specialties that professionals have, organized crime resorts to them because they have such capabilities. We felt and still feel that if they have a special responsibility toward society, and this is why they have that professional secret, if they abuse that secret I think there should be some kind of measure. We are not legislators, but there should be some kind of measure in the code to recognize the seriousness of such acts by them.

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

Thank you very much.

[The Chair, Conservative, Ed Fast]

We'll move on to Ms. Jennings.

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

Thank you.

I'd like to assure all members here that we have an excellent chair, and when there is a point of order, the clock is automatically stopped. I'm prepared to use part of my five minutes to explain this to members, so they don't need to be worried that I'm using a point of order to eat up their time.

I would like to come back to the issue of judges' discretion. I think I understand it, and I certainly do support it. I do, however, know that there are cases and there have been studies that show that in certain very exceptional cases minimum mandatory sentencing can in fact be dissuasive and can have a positive result. It's very few cases and very, very narrow, which is why when my former boss, the former Minister of Public Safety of Quebec, when he talks about the two forums in the Commonwealth countries--

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

That can be resolved.

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

Yes.

Has your committee looked at that issue at all?

[Giuseppe Battista]

Unfortunately, no.

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

Is it something that we could ask you to look at and to bring back to this committee? I think it is a subject that's worth looking at. If we could ever convince the government to actually do a real reform of our penal system, which would include a complete overhaul of the Criminal Code, bringing it into the 21st century, hopefully it will serve us well for a couple of decades before it requires major change. That could be something that would be of interest to look at.

[Giuseppe Battista]

I'll certainly undertake to do that.

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

Thank you.

[The Chair, Conservative, Ed Fast]

For the record, any witness can submit supplementary information to the clerk and we'll all receive it, translated as well.

Mr. Comartin.

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

Just on that point, there have been a number of references to that round table report in 2002, and I wonder if we could ask Mr. Battista to give us a copy. I'm not sure how we would find that otherwise.

[The Chair, Conservative, Ed Fast]

Do we have it? Is it translated? It probably isn't.

We will move on to Mr. Norlock. You have five minutes.

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

Thank you very much.

Thank you very much, witnesses, for coming today. It's very enlightening.

I think I need to ask this question to Mr. Brabant. I'm just carrying it a little further on the tools you believe investigators need, especially when it comes to the sophistication of organized crime. In particular, I think you were talking about solicitor-client privilege—well, not necessarily solicitor; it could be a chartered accountant or some other professional. When it comes to that particular person—or it could be a corporation or anyone being used to launder the proceeds of crime—I think that's sort of the road we were going down.

I don't think anybody wants to diminish the professionals' ability to be able to protect their client, but I think what you're referring to is tools, especially legislative tools, that would permit the police to access evidence. Yet at the same time, I'm wondering if you're referring to a judicial decision as to whether or not a certain piece of evidence were to infringe on that kind of privilege. Is that what you're referring to? I guess I'm saying you need to expound on that for the purposes of this committee's being able to make a more wholesome and fulsome recommendation with regard to a tool that investigators could use, while at the same time not diminishing or reducing those kinds of privileges that we as a society rely on.

[Francis Brabant]

Well, that would need very serious reflection, first of all. I alluded previously to one of the tools, which is to improve our abilities to intercept, further to Mrs. Jennings' question.

Our message here was more to say that we need to send a message, because more often than not, in our major investigations concerning money laundering, we are finding somewhere along the line a professional or a person who specializes or is very skilled, and the criminals look for those persons. We think those persons have a special responsibility towards society. When we establish that they participated in such crimes, I think a special message should be sent to the whole community that says it's more wrong for those persons to engage in such activities.

Now as to the particular tools concerning professional secrets, we'll have to think about it because the rules are quite entrenched at this moment, as you know.