Justice Committee on Oct. 22nd, 2009

[Inspector Martine Fontaine, Officer in Charge, Integrated Proceeds of Crime, Montreal, Royal Canadian Mounted Police]

As you know, section 462.48 of the Criminal Code allows us to obtain tax information on individuals. However, these are very limited exceptions, relating to drug offences, terrorism, criminal organizations or the laundering of drug money. Also there is corruption, fraud, and all other profit-generating crimes we would like to investigate, in particular to establish a person's lifestyle in relation to the acquisition of goods resulting from other offences. During an investigation, we do not have the tools we need to obtain this federal tax information.

Furthermore, it is an ex parte application made by the Crown. Our burden is therefore far heavier. Pursuant to the Income Tax Act, individuals must declare their income and, in that sense, it is monitored. However, it is far more complex to obtain this tax information. We cannot try to obtain it at the beginning of the investigation. We have to have done a lot of work before we can gain authorization to find this information. This information is now essential in any investigation on money laundering, corruption, fraud, narcotics and criminal organizations.

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

Thank you very much.

Do I have any time left, Mr. Chairman?

[The Chair, Conservative, Ed Fast]

No.

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

It will be for the second round.

[The Chair, Conservative, Ed Fast]

We'll move on to Mr. Ménard.

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

Thank you.

I would like to spend a week with you. I feel that we would obtain all the information we need to draft a comprehensive and useful report. Unfortunately, we have very little time. I commend you for being so specific in your presentations and not duplicating what the others were saying. Because there is so little time, I will ask you questions that beg for answers and that could seriously help us prepare our report.

I will start with Mr. Pierre-Paul Pichette, because of the position he holds. If you had to inform your minister on criminal gang activity in Montreal and Quebec City your notes and overall analysis would certainly not contain only secrets or information not to be disclosed to the general public. We know that in Montreal there are the Hells Angels, the mafia, street gangs and other groups. You quite rightly added responsibilities regarding Asian gangs and the former East Block gangs.

Can you give us a written summary on the status of organized crime in Quebec City and Montreal specifically?

[Pierre-Paul Pichette]

You will understand, Mr. Ménard, that I must refer that question to my superiors. However, rest assured that in Quebec, government authorities are aware of what can be proven in the field of intelligence. It must be clear to everyone. Information becomes intelligence, but intelligence is not investigation. We can draw up an overall picture for government authorities and police organizations.

With the influx and input from all organizations, we capture the information in the form of a global report. It is done on an annual basis. Depending on the specific problem brought to our attention or that we ourselves discover, theme-based reports are produced, at varying intervals.

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

Is there anything you could provide to members for our perusal?

[Pierre-Paul Pichette]

Yes.

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

I will let you determine that, but rest assured that it would be much appreciated; in essence, that is what we are seeking here.

Mr. Battista, I fully understand your position on minimum sentences; everyone knows I share that view. However, in looking at the federal Justice Department's documents, I realize that the department had done a study on mandatory sentences in common law countries. I then discovered a type of mandatory sentence I had not been aware of. Again, unfortunately, the terminology is not specific enough.

Regardless, there are two types of mandatory sentences. The types of minimum sentences we have in Canada do not give the judge any discretion, he must impose them upon finding the accused guilty of an offence. In some cases the sentence is mandatory rather than minimum. In that case, the judges may choose not to impose a mandatory sentence in exceptional cases, but they must provide written justification, in some countries. In other countries, the justification must be written into the case file or provided before an open court, as is the case in Scotland.

In our society, there is a wide range of opinions. Do you not think it would be a form of compromise for the Bar to agree to this second type of mandatory sentence?

[Giuseppe Battista]

Thank you for the question, Mr. Ménard.

Taking that position is important. The Bar has always held that the discretion of judges and prosecutors is very important, not only the discretion of judges. For justice to be effective and fair, prosecutors, including police officers, must also have discretion. All those involved must have the capacity to use judgment depending upon the circumstances.

What you are saying is certainly an avenue to explore. Especially if we have no choice but to think in terms of automatic sanctions. The problem is that automatic sanctions eliminate discretion for all. For instance, even in the United States, the guidelines that have been drawn up have been strongly criticized by all those in the field, even the legal field. Case law has developed in such a way that when there is a consent of both parties, judges may stray from the imposed sanctions.

If I may get back to one principle, it would be that of discretion, which we have always been in favour of.

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

I understand the nuance. Please understand I have very little time.

My next question is for Mr. Joyal.

You referred to the role of investigative forensic accountants. Was it you or someone else?

[Insp Sylvain Joyal]

Yes, it was me.

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

Do you make use of them? Are some of them permanent? Can they be part of police fraud squads?

I know that there are 50 or so of them in the federal government and that strangely, they are within the Department of Public Works.

[Insp Sylvain Joyal]

I can answer that question in part, Mr. Ménard.

Indeed, we do have an integrated approach.

As you know, we don't have expertise in all areas. We do seek out access to individuals who have studied in the field. For instance, in my colleague's field, the Integrated Proceeds of Crime Unit, obviously because of the complexity of the area we do have to turn to these people. From an integrated standpoint, they are indeed part of our teams. Even if they are not, we do have access to them.

[The Chair, Conservative, Ed Fast]

We'll move to Mr. Comartin.

[Insp Martine Fontaine]

Can I add to that response?

Since 1994, when IPOCs or Integrated Proceeds of Crime Units were first established, we have had investigative forensic accountants as full members of our team and that is the case for all units throughout Canada. They work with us. They are considered expert investigative forensic accountants. Because they provide expert opinions, they must remain at arm's length from us.

However, they are an integral part of our unit and of our investigations. We work in partnership with them. They come from Public Works, but they are fully here. For instance, in Montreal, there are seven of them.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll now move to Mr. Comartin for seven minutes.

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

Thank you, Mr. Chairman.

Thank you to all witnesses for being here.

I was wondering about something this morning and I'd like to ask you the following question.

Some of you believe it is very important to seize the property of organized crime members. However, we passed legislation in 2005, I believe, which came into force in 2006. It reversed the burden of proof. Yet, this morning we learned it wasn't being used and the only reason for that was that Crown and defence attorneys agreed not to use it.

If it is so important to seize this property, why not make further use of this legislation?

[Insp Martine Fontaine]

The reverse onus legislation was passed on November 25, 2005. We have used some provisions of the act to get restraint orders in some cases, including under operation Colisée. However, it has yet to be challenged, further to the regulations. You have to realize that reverse onus can help, but that it does not actually change much in the day-to-day lives of police officers. Indeed, under the act as it stands, we must prove beyond a reasonable doubt that the individual owns the property. So we must be in a position to prove, that this property belongs to the individual as a result of repeated criminal behaviour or through the acquisition of wealth.

As my colleague Inspector Denis Morin said, and as we've said, these people have learned and get rid of property that is in their name. So, investigations become very complex because we have to prove that the individual owns the property despite the fact that according to the land registry the property actually belongs to his wife, his daughter, his brother, his father or his deceased mother, or that the car is a rental. Bank accounts are hidden by fronts such as companies, trusts, because criminals have learned to hide behind trusts. Yet, it is good legislation, it is just that individuals have managed to circumvent it.

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

Do you have any recommendations as to how the law could be amended so as to make it more effective? I ask the question because I myself am a lawyer, and in the civil courts, in the case of divorce following marriage, hidden assets can be claimed, even if these assets are held under the names of other people, such as the father of the person involved, as an example. This is possible in the civil court system.

[Insp Martine Fontaine]

As you know, under the Criminal Code, we cannot force people to talk to us, and individuals are not compelled to tell us if they own assets or property. They have learned to establish a distance between themselves and the assets in question.

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

I understand that, Ms. Fontaine.

Mr. Brabant, can you help us? You are a lawyer.

[Francis Brabant, Legal Counsel, Sûreté du Québec]

Yes.

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

Did you study this? Do you have any recommendations on how the law can be changed so that it can be more easily enforced?