Allan Rock

[Criminal Code, April 21st, 1997]

We have asked for all-party agreement to deal with the bill now. My hon. friends have been kind enough to agree. We are dealing with, as I have said, a process that has been methodical. For some time we have been working at it, but it has been accelerated by reason of the request of the Government of Quebec for help in the present circumstances.

Over the last couple of years there have been almost 50 people killed in the gang war in Quebec. I met last week with Mrs. Desrochers, whose 11-year old son, Daniel, was killed in August 1995. He was walking down the street in Montreal on an errand for his mother. The police believe one of these gangs detonated an explosive that was intended as another offensive in their gang war. A piece of shrapnel blew across the street and took the life of the 11-year old boy.

I met with Mrs. Desrochers last summer in my office. The hon. member for Hochelaga was kind enough to introduce me to her. She asked how much longer she must wait before something was done about it. I told her we were working on it and the police were working on it. She met with me again last week. She said she wanted the bill in place and she wanted the police to have these tools. The most important thing to her was that the bill might help the police to find the people who are responsible for her son's death.

There are few more eloquent explanations of why we are moving quickly on the bill. I think of that grieving mother. I think of that 11-year old boy who lost his life. I think of a gang war that continues. We do not know from day to day where another bomb might be found or where it might be exploded. The criminal law is not something that can react on an hourly basis either to judicial decisions we do not like or crises that arise in terms of crimes in the country. It is an instrument that should be brought to bear in those circumstances where we feel as parliamentarians it can help in a lawful, practical way.

This is a problem of long standing which is of significant concern to our second most populous province. It has asked for our help and our urgent action. We have produced a bill we think is lawful and which will make a difference. It is under those circumstances we have asked that its adoption be expedited.

I am sensitive to those who say that greater care should be taken and a longer look should be taken at this bill. It may be that the other place may have its own ideas too about when and how the bill is considered.

If it does become law in the next little while, I can see us saying that we will commit to monitoring its progress, to reviewing its operation, to seeing what we have learned from it in operation. I have discussed this matter with officials. They think it may need a period of a couple of years or three years before we are able to look meaningfully at what we have learned from it by the time the wiretaps are in place and there is some empirical data by police across the country.

I would be happy to say to the hon. member that the government will return within three years with a statistical assessment of how this bill has operated, what the effect has been, what judicial decisions have been reached under the bill, whether there have been challenges to its validity, what the police say about how valuable this is as a tool in their hands, what changes might be desirable from a policy or practice point of view. That would be useful. It should be done anyway, but I would be happy to undertake to the member that the government will do so if he would find it of assistance.

[Criminal Code, April 21st, 1997]

I believe so but, more important, the police believe so.

It is helpful to have the advice of those who are actually in the field. It certainly was on gun control. We had the support of the chiefs of police and the Canadian Police Association. They believed it would make a difference in terms of community safety. I know the hon. member voted for Bill C-68. He must have come to that conclusion. I know how carefully he thinks through positions before taking them.

The member referred to this being our opportunity for due diligence. I do not want him to think for a moment that I do not welcome the opportunity to discuss these features of Bill C-95 with my colleagues. I welcome the chance to have their views. As I said earlier, I am sure we will learn from the incite they bring to the process. We need this kind of examination and I welcome it.

What will the bill give police forces that they do not already have under the existing Criminal Code? Why do they think it will be important to them in their fight against organized crime?

At the moment if police officers want to get a wiretap they have to prove a number of things to a judge first. Among those they have to prove on evidence that every other kind of investigative technique either has been tried and failed or if it was tried would fail because of the nature of the investigation. That takes police officers to the point of having to swear an affidavit or other form of particulars of what has already been done, go through the list of alternative methods and satisfy the court on evidence that it is a last resort in the investigation of a certain crime.

The bill would remove that burden. It would simplify the process of getting a wiretap if the police officer is investigating criminal organization offences. Similarly with warrants. Returning to wiretaps, it would relieve police officers of a paper burden. We are not saying we should allow free access to intrusive methods because it is administratively difficult for police. We are saying we should make that change because when investigating organized crime it is almost always obvious that it is a last resort for the reasons I have already given. It is very difficult to investigate.

We are taking a burden from the police which we think is undue in the circumstances of offences of this kind. Some say if it is all so easy to establish they can establish it to the satisfaction of the judge and nothing is lost. We are trying to recognize the unique character of these offences in the way investigative tools are available to police officers. If we have the courage to conclude on the facts that it is almost always the last resort, then let us say it in the criminal law and not have the police go through the empty process of establishing it. It sends a signal as well.

Furthermore, police officers have told me that they get wiretaps and the day after they start the paperwork to prepare for the renewal because they only get it for 60 days. They tell me that in the context of an organized crime offence it is absurd because those investigations take an exceptional period of time. They have to put together bits and pieces of conversations and relate them to other information. It is a very complex process. They almost always need the wiretap for longer than 60 days.

In the bill we are permitting the court to provide the wiretap for an extended period so that the police will be using their resources investigating crime rather than busily working at paperwork for the extension application.

Similarly notice of the wiretap has to be given after the wiretap is finished to people wiretapped so that they know it and can take proceedings. We have extended the period during which they can give notice in these cases because some of the investigations go on for an exceptional period of time.

At the moment there is a very narrow category of offences for which access to income tax information can be gained. That is as it should be. Income tax is filed on an undertaking with the Canadian people. It is implicit the information be kept absolutely confidential by Revenue Canada. We do permit it at the moment for a very few offences. Officials will know the sections. Basically they deal with drug offences.

What we have proposed is significant. It is to extend the category of access to tax information to assist in investigations into organized crime offences. They cannot just walk in and take the information out of a file. They have to go before a judge, get a warrant, establish to the satisfaction of the judge that a criminal organization offence is being investigated, and that they need the information and it relates to the investigation. Then the warrant can be given and can be limited to such information as the court thinks is appropriate. Nonetheless it is an important breakthrough in terms of giving police more information to fit the puzzle together as to who has what, what are the proceeds of crime, what money is being laundered or what illegal activity is taking place?

Similarly we are proposing for the first time to extend the proceeds of crime legislation beyond drug offences and the like to organized crime offences. It is not only the proceeds. Cash can be taken from their desks during the arrest. It can be instruments as well possibly including real estate if it has been fortified or modified to facilitate the commission of an offence. That is a very important point.

We spoke to the mayor of St. Nicolas or other communities where there are headquarters of organizations of great concern to the citizens. We can imagine a gang setting up in a municipality somewhere, taking over a house, fortifying it, setting up barriers so that the police could not raid it, putting concrete in front and surveillance cameras on top, modifying it and selling drugs out the back door or using it to store explosives or some other such thing. If the real estate is modified or fortified to facilitate the commission of criminal offences, the real estate could be regarded as one of the instruments of crime and could potentially be seized after conviction for an organized crime offence. That is an extremely important tool.

The bill includes serious increases in sentences for crimes committed in association with or for the benefit of criminal organizations. I could have explosives illegally on my person and I would be subject to a maximum of five years in prison. If I am doing it for the benefit of a gang, if I am delivering the explosives to a gang or have planted them for the gang, whether or not I am part of the gang I could face up to 14 years in prison. Why? Because we are targeting organized crime which in turn is targeting us, our families and our children. That is why.

That is not only important because it reflects society's denunciation of organized crime activity. It is also an important tool for the police that may be in a position of having picked people up, arrested them and charged them. Then they have a potentially serious sentence facing them. Police officers can say they are prepared to discuss with them the charge they will be brought before the court on or what submission they will make to the court in relation to the sentence if they co-operate by providing them with information they need. It is a very important tool for police that should not be underestimated.

Then there is the so-called peace bond provision which is not there now. It will let police officers bring someone before the judge and say they have reasonable grounds to fear the person will commit a criminal organization offence.

They can ask the judge to look at the evidence, at the people he associates with, at what he has done in the past, at what the wiretap has turned up and at all the other circumstances. Then they invite the judge to conclude there is a reasonable basis to fear the person will commit a criminal organization offence. They can tell the judge that he has committed a number of them in the past and is still with the same group of people. They can ask the judge to look at what he has said publicly and privately.

In those circumstances the court can impose for up to a year conditions on the person's liberty such as prohibiting him from communicating with other members of the group. This would seriously undermine the ability of the leadership of groups to carry on their business. The police believe that is also a valuable tool.

I take the member's point. I should have to satisfy him that what we are proposing here is not only lawful but will be effective. I am able to report from my dealings with the police, the crown attorneys and the attorneys general of the provinces that we have a collection of measures. They are not enough in and of themselves but they will make a difference. They will make it that much easier for the police to tackle this dreadfully difficult problem.

We will be back in the future with more proposals. This is only the first phase of what we will do. Organized crime is a menace in the country. I do not think most of us have an appreciation for what a serious threat it is to the economy and future of the country.

It is a good start. These measures will make a difference for police and that is why we are here.

[Criminal Code, April 21st, 1997]

I will answer those questions now. I should not pause. I should just keep talking straight through and not look as though I am going to stop.

There are two questions to answer in particular, the first one about lowering it to three. I am not aware of any court decisions that would bind us about the definitions of groups, organizations or associations. As I said earlier, we are happy to consider lowering it to three. Even as we speak there are people out there watching this and people in the justice department who are intensively examining the proposals that are being made to see if there are any other things we should say so we can add to this discussion. Before this process is over we will have a position for you on your suggestion that we lower it to three.

In your second question you asked us about the impact on law-abiding groups. I say that if there is a group out there that has as one of its primary activities the commission of indictable offences for which imprisonment of five years or more is provided in the code and which has as members people who have engaged over the last five years in the commission of a series of such offences, then they are not law-abiding groups and, by definition, law-abiding groups are excluded from the application of that section.

My friend also asks if we will prejudge certain organizations or gangs, the so-called clubs. No, we will not. The very thing that the attorney general of Quebec asked me for I simply could not give, which is to say that membership alone in a certain group called X is an offence and that there be a schedule to the act with the names of the groups on it which indicate that those people are all criminals and, therefore, they lose certain rights and we can do certain things. We said that we will not do that. We cannot do that.

Instead, we said that we would talk concepts instead of people. We will talk about teams and ideas instead of the names of groups. We will give a description in the criminal law. If there is a group which has as one of its primary purposes the commission of serious crimes and if that group has a membership which has engaged in the last five years in a series of serious crimes, that is a criminal organization. That does not create an offence, it just describes what a criminal organization is.

We then went on to say that if a person commits a crime to benefit a criminal organization, that is more serious than it would otherwise be because this is a particular mischief we are trying to root out of our society.

That is not to say that particular groups are automatically deemed to be criminal when we pass this bill. The reality is that the crown attorney will have to tender evidence in each case: that this person is doing this for the benefit of a criminal organization, that gang X is a criminal organization because it is borne out in the facts. The court will have to be persuaded that they fall within the definition.

The last question my friend asked was why is it that the 800-odd sections in the very thick and complete Criminal Code have not succeeded to date in achieving all of this?

Organized crime, as I have learned from the police, presents a unique challenge in investigation. The police techniques typically are that an informer is sent inside, an officer is sent in under cover or they try to persuade someone in the organization to turn and become their informer. Also they solicit bits of information from people who are prepared to talk. In organized crime, particularly some of the groups which are active in Canada today, the police cannot infiltrate because the groups require that in order to become a member or be admitted to the inner circle that person has to commit a serious crime to qualify. It is an initiation. Police cannot do that.

Second, those who are inside, who police sometimes try to turn to become informers, realize they will face the death penalty if they are caught. That is a serious disincentive to providing information to the police. Similarly, there is an element of intimidation of those who might otherwise give information.

The fact is that the police find it exceedingly difficult to investigate these groups based on the powers in the code. That is why the police have been asking for the kind of tools that are contained in this bill, which we believe will make a difference in these exceptional cases.

I hope that responds to the questions which my friend asked.

[Criminal Code, April 21st, 1997]

First, Mr. Chairman, I full agree with the hon. member, this is time well spent. I am very happy to have this interchange with hon. members about this bill.

The hon. member referred to a problem in Quebec as having inspired the bill. While the issue takes centre stage in Quebec because of the open warfare between certain gangs there now, it is a problem throughout Canada that we are addressing. I spoke with the chief of police in Vancouver in the course of consulting when we were drafting the bill and he was telling me about the problems in Vancouver with gangs and organized crime. Indeed, a serious criminal offence had been charged that very week involving a member of a biker gang in Vancouver.

I have spoken with attorneys general in Manitoba and Ontario, to the chiefs of police in Halifax, Toronto and Ottawa who have all told me the same thing. This is not just a Quebec issue. It so happens that the most spectacular aspects of the problem are evident there now with the bombs that have gone off and the lives that have been lost. However, we are dealing with a pan-Canadian issue, not just Quebec.

[Criminal Code, April 21st, 1997]

Mr. Chairman, yes. To the extent there has been public comment on these proposals, my impression is that some have been saying it should be more than five, not fewer than five. There may be witnesses before the other place when the bill gets there who will say that we should be increasing the number and not decreasing it.

At least for the moment I would like to reserve our position. Perhaps we can come back to this issue after we have had a longer time to think about it and I have a chance to speak to my officials about it.

[Criminal Code, April 21st, 1997]

Mr. Chairman, I do not recall that having been a matter of discussion. We looked at the possibility of three. The California statute refers to three. If the hon. member feels strongly about it I would be happy to have his views.

It will not make or break the bill. If the hon. member thinks it would be an advantage to say three, I find it difficult to argue strongly against him. Picking the larger number of five signals to my mind more clearly what we are after, the larger group starting to become a network. If the hon. member has strong views about it I would be happy to hear him and his rationale.

[Criminal Code, April 21st, 1997]

Mr. Chairman, I do not know that concerns were exactly expressed about the sections we have looked at so far. Certainly concerns were expressed about the overall bill. It is not hard to find those.

Alan Borovoy, for whose views I have the highest regard, expressed concern about whether the bill is over broad, whether the definitions of criminal organization are too sweeping so that we will catch in our net those who should not be there and do not

deserve to be called a criminal organization. I have answered that to some extent in my answers to the hon. member's questions. By the way, we took respectfully into account the views of Alan Borovoy and others who were concerned about over breadth.

For example, in one of the many drafts we added five-year minimum penalties for the indictable offences included in the definition of a criminal organization. We are elevating the seriousness of the crime, a series of which they have engaged in, by stipulating it is only crimes punishable by the maximum five years in prison that will qualify for the definition. We are getting past the trivial to the more serious kinds of crimes.

Speaking more directly to the hon. member's question about enforceability and whether it will be of practical benefit, police forces were very directly involved in the process I have described since February 1996. The Canadian Association of Chiefs of Police gave us its written proposal on what it thinks we ought to do about organized crime in Canada. We looked at it carefully. We concluded that at least in its present form it is not constitutionally valid, and we told the association that. We said we would keep working on it and that we regard Bill C-95 as the beginning of a process, not the end.

We will keep working on it. We also told police forces what we thought we could do in the short term based on the research done over the last several years, especially in the last 18-month effort. We sat down with them with these proposals. Last week the House could see for itself the degree and nature of support in the police community. It was very strong. Chiefs of police believe they will be able to use these tools.

The vice-president of the National Association of Chiefs of Police, Jacques Duchesneau, is the director of the police services in Montreal. He was closely involved in the development of the proposals. We gave him an outline of the proposals. He responded with his ideas. We had a dialogue. Last week he welcomed them as a very good start in terms of helping police forces with practical tools in their difficult task of tackling organized crime.

If we ask the experts, the actual police chiefs in the field, that is where we get the best evidence on the question of whether the proposals are useful and effective. I am able to report the police community has been strongly supportive of the proposals and believe they will be of value.

[Criminal Code, April 21st, 1997]

To a considerable extent. The process that resulted in the bill started in February 1996. At that time the solicitor general and I began looking at different available approaches to help the police investigating organized crime.

We conducted a seminar with police forces from across the country in February 1996 and received an extensive factual briefing about the nature and extent of organized crime in Canada, including biker gangs but not just biker gangs.

Through the period last summer and into the fall we in the department looked at possible approaches through legislation. In September of last year we had a national forum on organized crime to which we invited defence counsels, crown prosecutors, criminologists, business people, experts from the RCMP and representatives from other countries. Alan Borovoy was kind enough to come the conference as well.

We canvassed a wide range of people including civil libertarians. We canvassed a wide range of approaches trying to identify just what mischief we were after and how best within the Constitution to tackle it. That in turn gave rise to specific recommendations. Further work was done in the department over the winter.

When the government of the province of Quebec asked us in March for legislation to help with the biker gang problem in Quebec, that request accelerated work already under way. Indeed it had been under way for some extended period.

Since March we have had further discussions with representatives of various viewpoints in the criminal justice system. We took the concepts in Bill C-95, sat down and discussed approaches with defence lawyers, crown prosecutors, police officers, police chiefs, provincial attorneys general, provincial solicitors general and ministers of public security.

We were alerted to some concerns. We went to the Canadian Bar Association and to le Barreau du Québec. Sometimes we made changes or adjustments in the legislation because of what we were hearing. All the while we were conducting our own assessment of its constitutionality.

Is it possible to have further study? Of course. It is always possible to have further study. We do not have a monopoly on wisdom or on knowledge. I am sure the hon. member will bring to our attention today some useful insights with respect to the bill.

I assure the hon. member and committee of the whole that we have done a pretty thorough job in going to stakeholders in the criminal justice system to look at the bill through their eyes to anticipate objections and concerns that might be expressed. We have made changes to adjust to their concerns in some cases. Based on that overall survey we were satisfied it was good policy and good law and therefore we put it before the House.

[Criminal Code, April 21st, 1997]

Mr. Chairman, careful consideration has been given within the department to the constitutionality of the bill and each of its elements. It is difficult to answer about the constitutionality of subsection 1(a) because it is part of the whole.

I am able to tell the hon. member that we looked very carefully at the constitutionality of Bill C-95, those sections which create offences and those sections which modify existing sections of the Criminal Code. We are satisfied it is constitutional as being consistent with the charter. That results from careful assessment of all elements of the bill.

[Criminal Code, April 21st, 1997]

There is my Allan Rock group. It is not a declaration or a designation. It is a question of fact in each case. If there were only four members the act would not apply. If the group artificially subdivided to make it only four, as I said earlier I think the court would look past that artifice. If there really are only three or four people committing crimes, we have made the choice of five; it would not apply.

It is not as though we will ask the court to declare a certain group criminal and it is criminal for five or ten years thereafter. Every time someone brings an application for a search warrant, every time someone alleges the participation in a criminal organization, it will be necessary to prove afresh that there is a criminal organization involved. That depends on evidence. As a practical matter it may get easier the third, fourth or fifth time because the court will be able to look at evidence amassed on the earlier proceedings. Nonetheless, it will be a question of fact in each case for the court

to be satisfied that we are dealing with a criminal organization. Then the consequences would flow.