Justice Committee on March 25th, 2010

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin.

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

Mr. Henry and Mr. Trudell, I think this is the first time we've heard this outside of Ottawa--in the other communities we've visited so far and had hearings in--that the street gangs, as we've been calling them, aren't organized crime.

Certainly, other communities are seeing them as another level of organized crime, with the traditional, stereotypical Mafia, Cosa Nostra, model historically being the first one in most of our communities in the 20th century, then the bikers in the latter part of the 20th century, and now the street gangs seeming to follow. There are ways of identifying them, or they self-identify. They wear colours in a lot of cases. They certainly appear to take over territories. In some cases these territories may have been controlled in the past by the bikers, although that's not to suggest they're not still being used by the bikers or the old-style gangs and organized crime.

I'm trying to figure out why they're not considered organized crime in the way we've looked at it in the justice committee and in most police forces. I recognize certain small groups wouldn't fit that pattern. But if you think of the Crips or some of the street gangs in Toronto and in Vancouver, they would seem to fit most, if not all, of the criteria of what an organized crime group is.

[William Trudell]

Can I say, Mr. Comartin, that this is a difficult area because we're into labelling. One group gets together in a community to reflect cultural differences, as opposed to another group, having no father figure, who get together to have a sense of identity. Oftentimes at bail hearings for some of these young people, there's never a man who comes forward as a surety; it's the mother.

Some groups gather together out of a sense of identity, and it makes me think of West Side Story, but sometimes it's guns instead of knives. That's a different group, and the reasons for their involvement in that group may be actually addressed by what Mr. Henry is doing. We can't put an organized crime label on it and say, this is how we fix it.

There might be a group within a community who is a little more organized, with more sophisticated colours, and into more of a business operation--ownership, controlling the distribution of drugs, etc. That's a different phenomenon, but if it's in the community, we have to address it differently.

Thirdly, it's the classic that we talked about.

You say, they walk like a duck, they sound like a duck, they must be ducks, but they may not be. I think that organized crime, in terms of identification theft right now that's starting internationally, is a very different breed of cat than the group of six or seven kids in a community who maybe come from another country and culturally gather. They might gather because there is no place to go, or there's no hope, or there are no services. So when we are trying to decide how to combat organized crime, one solution doesn't fit all. That's one of the reasons why a list will be revisited. Somebody's going to say, we were wrong to have this list; we just didn't have all the data.

It's easy to say that the group is organized and they look like they're organized. Maybe some are just trying to look like they're organized, you know? That's the problem we're all facing, I think.

[Brian Henry]

From my perspective, when I think of organized crime I'm thinking more along the lines of some of the biker groups that are out there.

You were just talking about heads, subordinates, and as Mr. Trudell said, their single motivation is making money from crime. What we have in our communities is nothing so organized. Again, there is the exception where there are older groups of young adults who have become organized to some level and are working collaboratively to bring in money through crime. Certainly that is a policing issue. But I would say the vast majority, 95% to 98% of what we see in our community, are just young people who are out of school and who come together sometimes just to eat or be able to sleep. While individuals within these groups of young people end up committing crime, they are not reporting to anyone. They are not taking the money they make and bringing it to anyone inside the community. They are not sharing resources in that respect. So nothing I see in the community leads me to believe that we have a gang issue or organized crime issues within our community.

For a lot of these young people, when they do end up in trouble with the criminal justice system, there's no one there to post bail for them; they can't afford the $500 it costs to get a lawyer to defend them at their bail hearing. It's contingent on people like me to show up at the jail if they're in detention to maybe put $50 in their canteen for them to have something to eat. These young folks have no supports around them that would lead one to believe.... I've come across situations where one of the members of the biker gangs gets arrested, and they have other members there to get a lawyer to go and bail them out. With the young people I deal with in our communities, for the most part—as Mr. Trudell said—it's their mother who is organizing all of this, if she's even able to show up for them.

So, again, I don't believe organized crime to be a major issue within most of the neighbourhoods here in Toronto.

[William Trudell]

Can I just respond too, Mr. Comartin? I was thinking about this. If we take the police, we ask them to respond to two levels of what we'll call organized crime: the bikers and the community. In one area the police would be trying to infiltrate, and in the other, the community, they would be trying to engage. I'm not talking about the group that has gone on, and there are some people who are bad. But I think the approach that we would take with increased police presence is if I am a police officer and I want to combat organized crime, I'm going to try to infiltrate that business and make arrests. If I am a police officer trying to stop people in communities from getting involved in criminal activity, whatever it is, I will probably want to engage in the community, not just infiltrate but engage. One we can maybe solve, and the other we just have to deal with and keep fighting, I think.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Norlock.

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

Thank you.

Thanks to the witnesses for coming this morning. As usual we are learning a lot, and we continue to do so. Thank you for that.

Mr. Trudell, I was expecting sort of the same thing: that whatever we're doing in government is wrong, it won't pass the charter test, you're against it, and stay with the status quo. I'm glad you went off into a different area, because it's an area that I think is very important.

I agree with some of the things you mentioned, such as collaboration, the need for police forces to collaborate, the need for the folks in the justice envelope—judges, lawyers, crown attorneys, and police officers—to continue their discussion. I think that's what you mean by collaboration.

You went further and talked about collaboration among all the different levels within the community. Thank you for that, because I think that's the way we get things done--from the ground up, as it were--instead of having the so-called experts come to give us the philosophical reasons why we shouldn't do something. In the end it's the people who live it every day—that's why I believe Mr. Henry is here—who have the best information and sometimes the best solutions.

I wonder, Mr. Trudell, if you and perhaps Mr. Henry would comment on whether these things are happening. I'm almost positive they are. I listen to CFRB, so I know some of the things that are occurring in the Scarborough area. And things are improving, by the way.

Mr. Trudell, picking up on your theme, we very recently had the Minister of Justice come to a round table in Northumberland County on public safety and justice issues. We heard from a mix of all the police departments in the area, the victims groups, the police services board, the community policing committee, and representatives of youth--youth groups. The theme was almost identical right across the board.

You say we need to find out what they're thinking. When it came to proceeds of crime, the local police said we needed the proceeds of crime that occur in our community to come back to the police in that community, perhaps through the municipal government, so they can use them for a broad range of crime prevention programs and victims' assistance groups. So I wonder if you'd comment on whether you think that's appropriate, and whether Mr. Henry thinks that's appropriate.

They also talked about the need for more investment in youth anti-crime and anti-drug strategies. At the same time, they said that for those who are repeat offenders there needs to be more accounting. So we went from restorative justice that is happening in that community, which I think really works.... As we know, it started in New Zealand with the Maori Indians and worked its way up into our justice system. It works very well, in my view. But for the worst of the worst--the people who are captured under Bill C-4--that doesn't deal with first or even second offences. That piece of legislation deals with somebody who's been through the system so many times and continues with serious offences, usually bodily injury offences. So we're not dealing with that group.

When it comes to collaboration, as I left the policing background.... As a result of the Bernardo series of murders, we learned the reason why there was a successful conclusion to the investigation. Police forces were previously operating in silos and weren't sharing information, so the joint force operations that currently occur.... I would suggest, Mr. Trudell, that collaboration is occurring even more and better all the time, even internationally.

So I've hit on an eclectic mix of things. I wonder if you can make some short comments on it, and leave sufficient time for Mr. Henry to discuss how his community deals with the police.

Is there a community policing group there that collaborates with the police to look at these socio-economic as well as social justice...?

[William Trudell]

In relation to proceeds that are properly seized by the court, with all the balances that need to be put in place, I think that's probably a wise use for them--put them back into the community and make it known. No question about it. It should be something we promote. And that might be something you want to address.

There are bad people. I've met them. I probably have defended a couple. But at the end of the day, some have to be separated. They have to be incarcerated, and they have to be incarcerated for a lengthy period of time. If they're repeat offenders who don't care, as opposed to repeat chronic offenders who have something that's not addressed, then they should be dealt with harshly. And I believe they are.

I'm not going to stand up and submit to a court that someone who doesn't care, who commits violent offences, should be treated like a first offender. That's not my job. It's not fair. I'm a member of the community. So no question about it. And I really want to say to you that I think the really bad ones are few and far between. But there are some out there, and the courts are equipped to deal with them.

I'm not sure if you asked this question, but I'm going to throw it back anyway. There is a movement--as you did in Northumberland--to involve people in the community. The police are really at the forefront of this now. Everyone is being engaged, not only the police and the community, but also the defence and the judges are moving into the community to explain how the--

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

I'll just throw this in. We did have two members of the bar there from Northumberland.

[William Trudell]

Yes, I'm sure. And that is being proposed from the national symposium, which has really got off the ground by the Canadian Association of Chiefs of Police.

Let me just say one other thing that we haven't talked about but is really important. The public sometimes gets frustrated, not so much by what seems to be the result but by not understanding the system. What we should be doing collaboratively--and we are--is trying to run a better criminal justice system.

In terms of organized criminal cases, the emergence of the mega cases, these are all being addressed. And the way they're being addressed is by collaborative approaches on the front end. We ask police officers to be lawyers, to decide what evidence should be brought forward. Crowns, now, are moving toward helping police on the front end. So you have a better product as it gets into the system.

[The Chair, Conservative, Ed Fast]

Thank you.

I will move back to Mr. Murphy for another question. You have five minutes.

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

Thank you.

[A voice]

Is it possible for Mr. Henry to...?

[The Chair, Conservative, Ed Fast]

When you ask five-minute questions and you're expecting comprehensive answers from more than one witness, we have a problem.

So Mr. Henry, in the second go-around, someone can ask you the question again. You'll get more chances, I assure you.

[Brian Henry]

That's fine.

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

I agree, because we have the time.

I'm not giving up two minutes of my time.

[The Chair, Conservative, Ed Fast]

Others want to ask questions, so someone else can ask him that question. He'll get a chance to respond, I assure you.

Mr. Murphy, you do your five minutes.

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

Okay. And the time starts now. Good.

There wasn't enough time for Mr. Norton on civil liberties and charter protection issues to answer the specific questions around getting the ISP device manufacturers to at least allow us to have the means with judicial discretion. I want you to answer that.

I'd also like you to answer the way Mr. Trudell did on the issue of forfeiture. These are things all parties are looking at very seriously, tools to up-tool or up-resource the police officers.

And finally, the civil rights issues regarding youth, because YCJA amendments are coming.... We know they're coming because we agree with a lot of what Mr. Justice Nunn said in his report. Some of the measures in the new bill may or may not infringe on civil liberties. We'd like to have your opinion on that.

[Graeme Norton]

In terms of the first question on lawful access legislation, I think what you're hitting on is the idea of having ISPs built into their infrastructure, the ability to capture and retain certain information.

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

Also, device manufacturers.

[Graeme Norton]

Yes, there could also be device manufacturers.

That's not necessarily something we oppose. If there's information that's disappearing into the ether and there's a legitimate interest in that information, there may be a valid purpose for building that type of capacity into the infrastructure. It could hold that information, at least as long as required, to conduct legitimate law enforcement investigation.

There are provisions in the previous Bill C-47, I believe, that would require companies to have that capacity. In Bill C-46 I believe there was legislation that would create a preservation order power that would allow that information to be preserved until law enforcement could go to a judge and determine whether or not they should appropriately have access to it.

We don't have a problem with the preservation aspect, as long as it's for a short period of time. After that it will be destroyed once the decision has been made whether or not there needs to be access by law enforcement. If there does and there's an appropriate test met to meet that standard, then that's fine. If it doesn't, then the information can be destroyed as it otherwise would have been. It doesn't need to be retained for six or seven years.

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

You probably have two minutes for the two other issues, especially the user issues.

[Graeme Norton]

In brief, that's my assessment of that one.

On the civil forfeiture issue, this is something we've had a problem with for quite some time. It is, as you've mentioned, the lower standard of proof, the balance of probabilities. We were involved in the Chatterjee case, which went up to the Supreme Court of Canada, where they did endorse the Ontario legislation and found it to be constitutional. But in our view, the standard of balance of probabilities is too low for what is effectively something comparable to a criminal sanction to be taken against a person.

When you're dealing with potentially taking enormous sums of money from somebody or enormous sums of property, in our view there needs to be something higher demonstrated than simply a balance of probabilities case that those are in fact the proceeds of crime.

Number three, since I am proceeding very quickly here, is Bill C-4. We have another chance to thoroughly vet and review the provisions of Bill C-4. Our general position is that youth are less culpable for their crimes than adults--that's a rule that courts have generally accepted--and they need to be treated differently in the justice system.

In terms of how Bill C-4 does or doesn't do that, I'm not in a position to comment completely. I know it has raised the issue of greater reporting of names and that type of thing. I'm not sure exactly what that would advance, but I'd want to take a closer look at the legislation and see exactly what's being proposed.

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

Mr. Trudell, on the specific provisions of Bill C-4 about the removal of the ban on publication for certain young offenders or youths, what's your opinion?

[William Trudell]

As long as the judge makes the decision, I can live with it.