Public Safety Committee on April 17th, 2018

[The Chair, Liberal, John McKay]

Is there any further debate?

(Amendment negatived [See Minutes of Proceedings])

On LIB-8, we have Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

This is a reasonable amendment here I think, without question. This amendment requires the new agency to suspend a complaints investigation if it determines that the investigation would interfere with “an ongoing criminal investigation or proceeding”. This sort of complaint could arise if the review agency were investigating a complaint against the RCMP. The RCMP's own independent review body, the Civilian Review and Complaints Commission for the RCMP, is currently required to suspend its investigations for the exact same reason.

The goal here is to ensure that the review agency's activities don't conflict with the work of the police. Suspended complaints investigations would be resumed once the conflict was resolved.

[The Chair, Liberal, John McKay]

Is there any debate?

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

I'm leaning towards opposing this amendment. We came across this problem when we debated Bill C-22, creating the committee of parliamentarians, in terms of this notion of ongoing investigations. We can look at a situation like the Afghan detainees or Air India where those investigations could have been subject to this type of provision.

Interestingly, often some of our opposition amendments are rejected by those on the other side, on the grounds that these things are built into the legislation and understood in more subjective ways. This time I will be the one deploying that argument, because I believe it's understood that these review agencies are doing after-the-fact review at any rate, which was part of the rationale for rejecting my previous amendment about making orders that creep into oversight territory.

I believe that given that it already has a review function, and the fact that this kind of amendment could infringe on some of the more serious cases we've seen in Canadian history with regard to things spanning decades but where investigations were ongoing. This argument could have been made by authorities in those cases, and I don't think it's at all appropriate.

As I said, I would refer folks to the debate we had on Bill C-22 with the committee of parliamentarians where we heard evidence to that effect as well.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I think where I have some issue with the new amendment is that it's in the agency's opinion. Obviously they are going to be, I guess, biased; it's a wrong choice of words. However, they are involved in an investigation. How are they going to know that investigation hinders or compromises an investigation that's going on with one of the security agencies unless that security agency is the one that gives them that information?

It shouldn't be in the “opinion” of the review agency. If anything, it should be in the opinion of the national security agency that has an investigation that might be compromised. That's how I would interpret that, or how I think it makes better sense to me.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I'll just boil it down to the main goal here, which is to make sure that the agency's activities don't conflict with the work being done by police. It is important to have that and this amendment would achieve that. But I can assure you we'll agree to disagree and we should probably put it to a vote.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I will need explanations, as this seems contradictory to me.

The review agency would have a mandate to oversee the operations of other agencies, but, through this amendment, it will be told to forget about its oversight so as not to harm operations. However, oversight is the agency's primary goal if it is doing its job properly. In order to harm an investigation under way, it would have to intervene. Of course, the review agency's work is not to intervene on the ground and harm an operation, but if its mandate to oversee other agencies is removed, it would be as if those agencies were left to do what they want.

I don't understand this amendment's objective. Perhaps the officials could explain it to me. It seems to me that this is about taking away the agency's authority for unknown reasons.

Please give me a concrete example.

[The Chair, Liberal, John McKay]

I think you're directing that again to Mr.—

[John Davies]

Excuse me, sir. The objective here is that the investigation would be suspended only in the context of complaints, so if an individual complains to the RCMP that he didn't like something, that investigation could be suspended if there is an ongoing criminal investigation at the same time to give pause to the complaint. There is no interference in the complaint process and the criminal investigation does not suspend review. Reviews could keep going on. The review body could keep doing its work. There's no provision to suspend a review.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

It is still unclear. The review agency is there to conduct an investigation in case of a complaint.

Can you please give me a more concrete example?

[John Davies]

First, the Civilian Review and Complaints Commission, the CRCC, which is the existing body attached to the RCMP, is the one that was quite concerned that the language in their act, the RCMP Act, was imported over to Bill C-59. They're the ones who brought it up as very important.

I'm not familiar with specific examples where this was used. It's probably more in the normal civilian complaints relative to normal police behaviour, but I thought it was important enough to include just in case there was a need.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I agree with the intent of proposed section 27.1 of your amendment. I think it makes perfect sense. What I don't agree with is that the review agency determines whether they should stop it or not.

From a non-national security perspective, I've seen this happen where, in the civilian police perspective, you might have a complaint made but the investigation of the complaint made against a member or members or a team is going to compromise an ongoing investigation, whether it be drug-related or some organized crime connection, so the heads of the agency will know enough about that and they will go to the investigative body and ask if it can suspend this until this is done because that investigation, its talking to people, will interfere with their investigation over here.

I like this. It makes perfect sense. All I'm saying is that this has to be in this act but at the agency's discretion that is doing the investigation or doing the review. However we change the language, it has to mean in consultation with or on the advice of the agencies that are doing the criminal investigation. To me, it makes no sense that the review agency is the only one that makes that determination because they will only know the nuances of the investigation by the police on a criminal matter if they're told, and if they're told, then that should be in here.

It should not be the agency's opinion that it's going to compromise. It has to be the opinion of the police organization that is doing the criminal investigation because the review agency is not going to have all the facts. It is not going to have all the nuances of that undercover op or whatever might be going on. They're not going to know it. They're only going to know the complaint aspect of it. I agree that this is language that we have to have. It just doesn't sit right with me that it's the agency's opinion because their opinion in this matter of whether it interferes shouldn't matter. It has to be the agency where the police of jurisdiction are being compromising.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I wanted to build on the commentary by Mr. Motz. He used, a number of times, the word “interfere”. I wanted to direct my question to Mr. Davies and to look at the threshold that's actually in the language. The language isn't “interfere”. The language is “compromise or seriously hinder”.

In my view, that's a higher threshold than simple interference. Any law enforcement agency is going to see some sort of intervention by NSIRA as an irritant or as interference. Interference itself isn't enough to stop it. It's “compromise or seriously hinder”, and I wanted to ask Mr. Davies about his view on that threshold and also on the agency's capacity to assess objectively whether that threshold has been reached.

[John Davies]

My understanding in the CRCC context is that it's well understood. It's a back and forth with the police agency and the CRCC. It's not a one-way decision. There's information exchanged and the threshold is met. If the police unilaterally had that ability to shut down complaints, that may cause a concern as well.

If it's working well now under existing law, and it's clear that it is a discussion to get to that opinion, and obviously the police would have an incentive to ensure enough information was exchanged to help to get them to that opinion, if it were necessary, then that is the spirit in which it was drafted.

[The Chair, Liberal, John McKay]

Mr. Picard.

[Michel Picard, Liberal, Montarville, QC]

My question's been answered.

[The Chair, Liberal, John McKay]

Okay.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Just a brief point, the wording for this is exactly the same as what's in the RCMP Act. This is the benefit of sitting beside the analyst. For a point of clarification, it's the same wording that we've used in other legislation. It's “if, in the Commission's opinion” and then “compromise or seriously hinder”.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chair, I would like us to take a short five-minute break, so that I can propose a subamendment in order to clarify the amendment's wording.

[The Chair, Liberal, John McKay]

I'm hesitant to grant any suspension only because we have about 10 minutes left and this is how far we've gone and this is how far we have to go. I'm a little hesitant to take time out. I'm prepared to let the debate carry on.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chair, let me remind you that we had the bill before the debates and that we should have worked on the details a bit more.

[The Chair, Liberal, John McKay]

I am in the committee's hands to ask for a suspension for several minutes. We'll put it in the form of a motion, but I just want a sense of the will of the committee.

[Michel Picard, Liberal, Montarville, QC]

Was the purpose of the break just to rephrase the subamendment?

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Yes, we want to draft a subamendment.

[Michel Picard, Liberal, Montarville, QC]

I would be flexible for two minutes.